01Financial Statements and Other Information. Holdings or the Borrower will furnish to the Administrative Agent, on behalf of each Lender and the Issuing Banks: (a) on or before the date that is 100 days after the end of each fiscal year of the Borrower, (i) an audited consolidated balance sheet and audited consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year; (b) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year; (c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year; (d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and (e) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.
Appears in 1 contract
01Financial Statements and Other Information. Holdings or the Borrower will furnish to the Administrative Agent, on behalf of Agent for distribution to each Lender and the Issuing BanksLender:
(a) on or before the date that is 100 within 120 days after the end of each fiscal year of the BorrowerBorrower (commencing with the fiscal year of the Borrower ended December 31, (i) an 2023), its audited consolidated balance sheet and audited consolidated related statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or any other independent registered public accounting firm accountants of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any national standing (without a “going concern” or like qualification qualification, commentary or exception or and without any qualification or exception as to the scope of such audit and (except as resulting solely from an upcoming Default or Event of Default under this Agreement or the maturity of the Loans within the 12-month period following the relevant audit date)) to the effect that such consolidated financial statements present fairly, fairly in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal yearon a consolidated basis in accordance with GAAP consistently applied;
(b) on or before the date that is 45 within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (commencing with the fiscal quarter of the Borrower ended June 30, (i) an unaudited condensed 2023), its consolidated balance sheet and unaudited condensed consolidated related statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a one of its Financial Officer Officers as presenting fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above to the Administrative Agent, a compliance certificate of a Financial Officer of the Borrower substantially in the form of Exhibit I (i) certifying, in the case of the financial statements delivered under clause (b) above, as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether whether, to the knowledge of such Financial Officer, a Default has occurred and is continuing and, if a Default has occurredoccurred that is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto and thereto, (iiiii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) the Financial Covenants and (Biv) stating whether any change in GAAP or in the case application thereof has occurred since the date of the audited financial statements referred to in paragraph (a) aboveSection 3.04 and, beginning with if any such change has occurred, specifying the effect of such change on the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for accompanying such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal yearcertificate;
(d) as soon as available, but in any event not later than 75 105 days after the commencement beginning of each fiscal year of the BorrowerBorrower that begins after the Effective Date, a detailed consolidated budget for copy of the Borrower plan and its Subsidiaries for such fiscal year forecast (including a projected consolidated balance sheet and consolidated statements of projected operationssheet, comprehensive income statement and cash flows as flow statement) of the end Borrower for each quarter of and for such fiscal year in form reasonably satisfactory to the Administrative Agent (which, for the avoidance of doubt, shall not be required to include projections of compliance with the Financial Covenants, projections of the Senior Secured Net Leverage Ratio or Consolidated Interest Coverage Ratio or a description of the assumptions made in the build-up of such plan and setting forth the material assumptions used for purposes of preparing such budgetforecast); and
(e) promptly following any request by the Administrative Agent therefor, (ix) any documentation or such other information that regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent on its own behalf or on behalf of any Lender (acting through the Administrative Agent) may commercially reasonably request in order to comply and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SECb) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: ) or on XXXXX (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent Electronic Data Gathering, Analysis and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) Retrieval system of the posting of SEC) or any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”successor thereto.
Appears in 1 contract
Samples: Credit Agreement (Harmony Biosciences Holdings, Inc.)
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of which shall furnish to each Lender and the Issuing BanksLender:
(a) on or before the date that is 100 within ninety (90) days after the end of each fiscal year of the BorrowerHoldings, (i) an its audited consolidated balance sheet and audited consolidated related statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any the Accounting Firm (without a “going concern” or like qualification (other than any such qualification to the “going concern” opinion that is solely resulting from (x) the impending Maturity Date or the final stated maturity of any Indebtedness, (y) any potential inability to satisfy the Financial Covenant or any other financial covenants under any Indebtedness on a future date or in a future period or (z) limited solely to the effect of the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiaries on such Unrestricted Subsidiaries) or exception or and without any qualification or exception as to the scope of such audit and audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal year of the Borrower Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) applied, certified by a management report setting forth a narrative report and management’s discussion and analysis of Financial Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower Holdings and its consolidated Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal yearon a consolidating basis in accordance with GAAP;
(b) on or before the date that is 45 within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerHoldings, (i) an unaudited condensed its consolidated balance sheet and unaudited condensed consolidated related statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a one of its Financial Officer Officers as presenting fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously concurrently with the any delivery of each set of financial statements referred to in paragraphs under clause (a) and or (b) above, a certificate of a Financial Officer in substantially the form of Exhibit B (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) the Financial Covenant and (Biii) stating whether any change in GAAP or in the case application thereof has occurred since the later of financial statements referred to in paragraph (a) aboveDecember 31, beginning with 2018 and the end date of the financial statements for most recently delivered pursuant to Section 5.01(a) and, if any such change has occurred, specifying the fiscal year effect of such change on the Borrower ending December 31, 2022 (and only if the ECF Percentage for financial statements accompanying such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal yearcertificate;
(d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and[reserved];
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by Holdings to its shareholders generally, as the case may be; and
(f) promptly following any written request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower Holdings or any of its SubsidiariesSubsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent on its own behalf or may reasonably request, on behalf of itself or any Lender may hereunder; or (ii) information and documentation reasonably request in writingrequested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Beneficial Ownership Regulation, the USA PATRIOT Act or other applicable anti-money laundering laws. Notwithstanding anything to the foregoingcontrary in this Section 5.01, (x) Holdings and the obligations in paragraphs (aBorrower shall be deemed to have complied with the terms of Sections 5.01(a) and (b) of this Section 5.01 may be satisfied ), as applicable, with respect to the financial information statements required to be delivered pursuant thereto if Holdings delivers to the Administrative Agent and the Lenders, within the same time frame required under the Securities Act and the rules and regulations of the Borrower Securities and Exchange Commission its Subsidiaries by furnishing reports annual report on Form 10-K for the applicable fiscal year or its quarterly report in Form 10-Q for the applicable fiscal quarter, respectively, that it (or any of its direct or indirect parent companies; provided that, in the equivalent), as applicable, of event the Borrower, CWH or any other parent company holding company(s) structure of the Borrower as of the Closing Date changes (or such direct or indirect parents of Holdings otherwise cease to become passive holding companies), consolidated balance sheets, statements of profit and loss and statements of cash flows of Holdings shall also be provided) has filed with the SEC Securities and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one handExchange Commission, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (iiy) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents documents required to be delivered pursuant to Section Sections 5.01(a), (b) or 5.01(band (f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings provides notice to the Borrower posts Administrative Agent that such documents, or provides a link thereto, information has been posted on the Borrower’s Holdings’ website on the Internet at (with such notice containing the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)link thereto), or (ii) on which such documents are posted on the Borrower’s Holdings’ behalf on an Internet IntraLinks/IntraAgency or intranet another relevant website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.
Appears in 1 contract
01Financial Statements and Other Information. Holdings or the Borrower The Company will furnish to the Administrative Agent, on behalf of Agent and each Lender and the Issuing BanksLender:
(a) on or before the date that is 100 as soon as available, but in any event not later than 120 days after the end close of each fiscal year of year, for the BorrowerConsolidated Group, (i) an audited financial statements, including a consolidated balance sheet as at the end of such year and audited the related consolidated statements of operations, stockholders’ equity income and retained earnings and of cash flows of the Borrower as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any without a “going concern” or like qualification or exception exception, or any qualification or exception as to arising out of the scope of such audit and that such consolidated financial statements present fairlythe audit, in all material respects, the consolidated financial position as prepared by KPMG LLC or other independent certified public accountants of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal yearnationally recognized standing;
(b) on or before the date that is 45 as soon as available, but in any event not later than 60 days after the end close of each of the first three fiscal quarters of each fiscal year and not later than 90 days after the close of the Borrowerlast fiscal quarter of any fiscal year, (i) for the Consolidated Group, an unaudited condensed internally prepared consolidated balance sheet as of the close of each such period and the related unaudited condensed internally prepared consolidated statements of operations, stockholders’ equity income and retained earnings and of cash flows of the Borrower as of the end of and Consolidated Group for such fiscal quarter period and the then elapsed portion of the fiscal yearyear through the end of such period, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly, in all material respects, the consolidated Company’s chief financial position as of the end of, and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal yearofficer or chief accounting officer;
(c) simultaneously concurrently with the any delivery of each set of financial statements referred to in paragraphs under clause (a) and or (b) above, a certificate of a Financial Officer Compliance Certificate (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and demonstrating whether the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period Company is in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) Sections 7.02 and 7.09, including an update of Schedule 5.19 listing all of the Unencumbered Properties as of such date, and (Biii) stating whether any material change in GAAP or in the case application thereof has occurred since the date of financial statements the Audited Financial Statements referred to in paragraph (a) aboveSection 5.05 and, beginning with if any such change has occurred, specifying the effect of such change on the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for accompanying such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal yearcertificate;
(d) not later than 75 days after concurrently with the commencement of each fiscal year quarterly financial statements required under clause (b) above, a schedule of the BorrowerUnencumbered Properties comprising the Total Unencumbered Property Pool Value, a detailed consolidated budget for the Borrower summarizing total revenues, expenses, and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); andUnencumbered Property NOI.
(e) promptly following any request thereafter, copies of all periodic and regular reports, registration statements (without exhibits unless expressly requested by Administrative Agent) and prospectuses and all amendments thereto filed by the Trust, the Company or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Trust to its shareholders generally, as the case may be;
(f) within 30 days after the close of each fiscal year, annual projections (cash flow and operating income) for the Company in a form and content reasonably acceptable to Administrative Agent;
(g) promptly following any reasonable request therefor, (i) any provide information and documentation or other information that reasonably requested by the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply for purposes of compliance with its ongoing obligations under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the USA Patriot PATRIOT Act and the Beneficial Ownership Regulation; and
(h) promptly following any request therefor, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parentthe Trust, the Borrower Company or any of its SubsidiariesSubsidiary, or compliance with the terms of any Loan Documentthis Agreement, as pursuant to a reasonable and customary request from the Administrative Agent on or any Lender. The Company may, in its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoingsole discretion, the satisfy its obligations in paragraphs (aunder Sections 6.01(a) and (b) of this Section 5.01 may be satisfied by filing with respect to financial information of the Borrower and its Subsidiaries by furnishing reports SEC Annual Reports on Form 10-K or and Quarterly Reports on Form 10-Q (or the equivalent), and such other reports on other forms as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or appropriate at such other parent company, on the one hand, times and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) SEC’s rules and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that instructions accompanying such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustmentsforms. Documents required to be delivered pursuant to Section 5.01(a6.01(a) or 5.01(b(b) or Section 6.01(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower Company posts such documents, or provides a link thereto, thereto on the BorrowerCompany’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), 10.02; or (ii) on which such documents are posted on the BorrowerCompany’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (Ai) the Borrower Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its reasonable request to the Company to deliver such paper copies until a written notice request to cease delivering paper copies is given by the Administrative Agent or such Lender and (Bii) the Borrower Company shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (Ares Real Estate Income Trust Inc.)
01Financial Statements and Other Information. Holdings or the Borrower The Borrowers will furnish to the Administrative Agent, on behalf of each Lender and the Issuing Banks:
(a) on or before the date that is 100 as soon as available and in any event within ninety (90) days after the end of each fiscal year of the Parent Borrower, (i) an the audited consolidated balance sheet and audited consolidated related statements of operationsearnings, stockholdersshareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the Specified Subsidiaries, on the other hand) as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche KPMG LLP or any other another independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any national standing (without a “going concern” or like qualification or exception or and without any qualification or exception as to the scope of such audit and audit) to the effect that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal year of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal yearGAAP;
(b) on or before the date that is 45 as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Parent Borrower, (i) an unaudited condensed the consolidated balance sheet and unaudited condensed consolidated related statements of operationsearnings, stockholdersshareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the Specified Subsidiaries, on the other hand) as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Parent Borrower as presenting fairly, in all material respects, the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Parent Borrower and its Subsidiaries on a 4879-0244-9248v.7112 US 9692390v.1 CHA715/20025 consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of certain footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously concurrently with the any delivery of each set of financial statements referred to in paragraphs under clause (a) and or (b) aboveof this Section, a certificate of executed by a Financial Officer of the Parent Borrower (i) certifying as to whether whether, to the best knowledge of such Financial Officer (following due inquiry), a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a7.08 (if a Trigger Period is in effect) and (Biii) stating whether any change in GAAP or in the case application thereof has occurred since the date of the Parent Borrower’s audited financial statements referred to in paragraph (a) aboveSection 4.04 and, beginning with if any such change has occurred, specifying the effect of such change on the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for accompanying such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal yearcertificate;
(d) not later than 75 within forty-five (45) days after the commencement of each fiscal year of the Parent Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries by quarter for such fiscal year (including a projected consolidated balance sheet and consolidated related statements of projected operations, comprehensive income operations and cash flows flow as of the end of and for such fiscal year and setting forth the material assumptions used for purposes year) and, promptly when available, any significant revisions of preparing such budget); and;
(e) within five (5) days after the end of each month, a certificate in the form of Exhibit D or any other form reasonably acceptable to the Agent (a “Borrowing Base Certificate”) showing the Borrowing Base as of the close of business on the last day of the immediately preceding month and supporting information reasonably requested by the Agent in connection therewith (including, in respect of any Borrowing Base Certificate delivered for a month which is also the end of any fiscal quarter of the Parent Borrower, a calculation of Average Quarterly Availability for such quarter then ended and an indication of what the Applicable Rate is as a result of such Average Quarterly Availability), each such Borrowing Base Certificate to be certified as complete and correct on behalf of the Borrowers by a Financial Officer of the Parent Borrower; provided, that, at any time an Activation Period exists, a Borrowing Base Certificate (showing the Borrowing Base as of the close of business on the last day of the immediately preceding week) shall be furnished weekly on Wednesday of each week;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Parent Borrower with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of the Securities and Exchange Commission, or with any national securities exchange, as the case may be;
(g) promptly upon receipt thereof, copies of all reports submitted to the Parent Borrower by independent certified public accountants in connection with each annual, interim or special audit of the books of the Parent Borrower and its Subsidiaries made by such accountants, including any management letter commenting on the Borrowers’ internal controls submitted by such accountants to management in connection with their annual audit;
(h) [Reserved]; and 4879-0244-9248v.7113 US 9692390v.1 CHA715/20025
(i) promptly following any request therefor, (i) any documentation or such other information that regarding the Administrative operations, changes in ownership of Equity Interests, business affairs and financial condition of any Borrower or any Subsidiary, or compliance with the terms of this Agreement or any other Loan Document, as the Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply request, and (ii) information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA Patriot PATRIOT Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the The Parent Borrower’s obligations in paragraphs under clauses (a) and (b) of this Section 5.01 may shall in any event be satisfied with respect to deemed sufficiently performed if the financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified therein are delivered by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of time required under the applicable fiscal period, clause in such form and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of content as permitted under the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustmentsExchange Act. Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed and publicly available with the SECSecurities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent Borrower posts such documentsdocuments on xxx.xxx.xxx, or provides a link thereto, thereto on the Parent Borrower’s website website. All documents and notices required by this Section shall be deemed sufficiently delivered when posted by the Agent on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, Approved Electronic Platform to which each Lender and Issuing Bank the Agent have been granted access. The Parent Borrower represents and warrants that it files its financial statements with the SEC and, accordingly, the Parent Borrower hereby (i) authorizes the Agent to make the financial statements to be provided under Section 6.01(a) or (b), along with the Loan Documents, available to all Lenders and (ii) agrees that at the time such financial statements are provided hereunder, they shall already have been made available to holders of its securities. The Parent Borrower will not request that any other material be posted to all Lenders without expressly representing and warranting to the Agent in writing that such materials do not constitute material non-public information or that the Parent Borrower has no outstanding publicly traded securities. In no event shall the Administrative Agent have access (whether a commercial, third-party website post compliance certificates or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents budgets to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”public side lenders.
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of each Lender and Agent (for distribution to the Issuing Banks:Lenders):
(a) Via either the XXXXX System or its Home Page, concurrently with the filing of its annual report on or before Form 10-K for the date that is 100 fiscal year then ended with the SEC, but no event later than 120 days after the end of each such fiscal year, the financial statements for such fiscal year as contained in such annual report on Form 10-K and, as soon as it shall become available, via either the XXXXX System or its Home Page, the annual report to its holders of Equity Interests for the Borrowerfiscal year then ended;
(b) Via either the XXXXX System or its Home Page, (i) an audited consolidated balance sheet and audited consolidated statements concurrently with the filing of operationsits Quarterly Report on Form 10-Q for the fiscal quarter then ended with the SEC, stockholders’ equity and cash flows of the Borrower as of but no event later than 60 days after the end of and such fiscal quarter, copies of the financial statements for such yearfiscal quarter as contained in its Quarterly Report on Form 10-Q, and related notes theretoand, setting forth in each case in comparative form as soon as it shall become available, via either the figures XXXXX System or its Home Page, a quarterly report to its shareholders for the previous fiscal year, all reported on by Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied quarter then ended and (ii) concurrently with the filing thereof with the SEC, copies of any pro forma financial statements filed under Regulation S-X or other financial statements filed with the SEC related to any Financed Acquisition;
(c) Via either the XXXXX System or its Home Page, promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(d) concurrently with any delivery of financial statements under clause (a) or (b) above (excluding any pro forma financial statements under clause (b)), a management report setting forth certificate of a narrative report and management’s discussion and analysis Financial Officer of the Borrower in substantially the form of Exhibit B (i) certifying, in the case of the financial statements delivered under clause (b), that such financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year;
(b) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis as of the date thereof in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto thereto, and (iiiii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year6.10;
(de) not [Reserved];
(f) as soon as available, and in any event no later than 75 120 days after the commencement end of each fiscal year of the BorrowerBorrower and its Subsidiaries, a detailed consolidated budget for the Borrower and its Subsidiaries for such following fiscal year (including a projected consolidated balance sheet of the Borrower and consolidated statements of projected operations, comprehensive income and cash flows its Subsidiaries as of the end of the following fiscal year, and for the related consolidated statements of projected cash flow, projected changes in financial position and projected income), (collectively, the “ Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such fiscal year Projections are prepared in good faith based on estimates, information and setting forth assumptions believed by the material assumptions used for purposes Borrower to be reasonable as of preparing the date of such budget)certificate; and
(eg) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding and to the foregoingextent reasonably available to the Borrower; provided, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information none of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that Subsidiary will be required to disclose or deliver information (i) in respect of which disclosure to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP Administrative Agent or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 Lender (or otherwise notified pursuant to Section 9.01(d)), their respective representatives or contractors) is prohibited by any law or by any binding agreement or (ii) on which such documents are posted on the Borrower’s behalf on an Internet that is subject to attorney-client privilege or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”constitutes attorney work product.
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of each Lender and Agent (for distribution to the Issuing Banks:Lenders):
(a) Via either the XXXXX System or its Home Page, concurrently with the filing of its annual report on or before Form 10-K for the date that is 100 fiscal year then ended with the SEC, but no event later than 120 days after the end of each such fiscal year, the financial statements for such fiscal year as contained in such annual report on Form 10-K and, as soon as it shall become available, via either the XXXXX System or its Home Page, the annual report to its holders of Equity Interests for the Borrowerfiscal year then ended;
(b) Via either the XXXXX System or its Home Page, (i) an audited consolidated balance sheet and audited consolidated statements concurrently with the filing of operationsits Quarterly Report on Form 10-Q for the fiscal quarter then ended with the SEC, stockholders’ equity and cash flows of the Borrower as of but no event later than 60 days after the end of and such fiscal quarter, copies of the financial statements for such yearfiscal quarter as contained in its Quarterly Report on Form 10-Q, and related notes theretoand, setting forth in each case in comparative form as soon as it shall become available, via either the figures XXXXX System or its Home Page, a quarterly report to its shareholders for the previous fiscal year, all reported on by Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied quarter then ended and (ii) concurrently with the filing thereof with the SEC, copies of any pro forma financial statements filed under Regulation S-X or other financial statements filed with the SEC related to the Target and/or the eTouch Acquisition;
(c) Via either the XXXXX System or its Home Page, promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(d) concurrently with any delivery of financial statements under clause (a) or (b) above (excluding any pro forma financial statements under clause (b)), a management report setting forth certificate of a narrative report and management’s discussion and analysis Financial Officer of the Borrower in substantially the form of Exhibit B (i) certifying, in the case of the financial statements delivered under clause (b), that such financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year;
(b) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis as of the date thereof in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto thereto, and (iiiii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year6.10;
(de) not [Reserved];
(f) as soon as available, and in any event no later than 75 120 days after the commencement end of each fiscal year of the BorrowerBorrower and its Subsidiaries, a detailed consolidated budget for the Borrower and its Subsidiaries for such following fiscal year (including a projected consolidated balance sheet of the Borrower and consolidated statements of projected operations, comprehensive income and cash flows its Subsidiaries as of the end of the following fiscal year, and for the related consolidated statements of projected cash flow, projected changes in financial position and projected income), (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such fiscal year Projections are prepared in good faith based on estimates, information and setting forth assumptions believed by the material assumptions used for purposes Borrower to be reasonable as of preparing the date of such budget)certificate; and
(eg) promptly following any request therefor, (ix) any documentation or such other information that regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request and to the extent reasonably available to the Borrower; provided, none of the Borrower or any Subsidiary will be required to disclose or deliver information (i) in order respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by any law or by any binding agreement or (ii) that is subject to attorney-client privilege or constitutes attorney work product and (y) information and documentation reasonably requested by the Administrative Agent or any Lender required to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
01Financial Statements and Other Information. Holdings or the Borrower will furnish to the Administrative Agent, on behalf of each Lender and the Issuing Banks:
(a) as soon as available and in any event within 45 days after the end of the first three fiscal quarters of each fiscal year (or 90 days, in the case of the fourth fiscal quarter), the consolidated balance sheets of the Obligors as of the end of such quarter, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of Borrower stating that such financial statements fairly present the financial condition of Borrower and its Subsidiaries as at such date and the results of operations of Borrower and its Subsidiaries for the period ended on or before such date and have been prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, such financial statements shall be deemed to have been delivered to the Administrative Agent on the date that is 100 on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxx;
(b) as soon as available and in any event within 90 days after the end of each fiscal year year, the consolidated balance sheets of Borrower and its Subsidiaries as of the Borrowerend of such fiscal year, (i) an audited consolidated balance sheet and audited the related consolidated statements of operationsincome, stockholdersshareholders’ equity and cash flows of the Borrower as of the end of and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on accompanied by Deloitte & Touche LLP or any other a report and opinion thereon of Borrower’s then current independent registered certified public accounting firm accountants of nationally recognized standingnational standing acceptable to the Majority Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards, standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as of the end ofaudit, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year;
(b) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetsuch consolidating financial statements, as of the end of) the previous fiscal year, all certified by a Financial Responsible Officer as presenting fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows forBorrower; provided that, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject audited financial statements shall be deemed to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared have been delivered to the comparable periods in Administrative Agent on the previous fiscal yeardate on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxx;
(c) simultaneously for any fiscal quarter during which the minimum Net Revenue covenant contained in Section 10.02 is in effect, together with the delivery of each set of financial statements referred required pursuant to in paragraphs (aSections 8.01(a) and (b) above), a compliance certificate of a Financial Responsible Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year;
(d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and
(e) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) including details of any issues that are material that are raised by auditors;
(d) together with the financial statements required pursuant to Sections 8.01(a) and (b), the reports required by Section 4.01 of the Revenue Participation Agreement;
(e) promptly upon receipt thereof, copies of all letters of representation signed by an Obligor to its auditors and copies of all auditor reports delivered for each fiscal periodquarter;
(f) promptly after the same are released, copies of all press releases;
(g) promptly, and consolidated in any event within five Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of operations such Obligor;
(h) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(i) promptly following the Administrative Agent’s request at any time, proof of Borrower’s compliance with Article X;
(i) copies of all statements, reports and notices made available to holders of Borrower’s Equity Interests and (ii) copies of all presentation materials or board kits provided to the Board of Directors of Borrower or any Subsidiary Guarantor, in each case within five (5) days of delivering or otherwise making available such material to such holders or directors; provided that any such material may be redacted by Borrower to exclude information relating to the Lenders (including Borrower’s strategy regarding the Loans);
(k) from time to time upon the reasonable request of Majority Lenders, a comprehensive update on the business of the Obligors, including management reports and supporting data relating to productivity of sales representatives for the Products and weekly and monthly revenue, in each case in the aggregate and itemized by product and territory;
(l) any correspondence with the FDA, including without limitation regarding any BLA or any other biologics licensing application with respect to any Product or any manufacturing audit; and
(m) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Majority Lenders may from time to time reasonably request. For purposes of clarification, any request for the annually-prepared consolidated financial forecast for Borrower and its Subsidiaries for the following two fiscal years from the time such forecast was prepared, including projections of Net Revenue, on a quarterly basis, and forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes Borrower and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so deliveredits Subsidiaries, shall be deemed reasonable. For the avoidance of doubt, in no event shall Borrower or any other Obligor furnish any of the materials and information required to have been delivered on the date (i) on which the Borrower posts such documents, be furnished under this Section 8.01 or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (Section 8.02 or otherwise notified pursuant any other provision of this Agreement or any other Loan Document that constitutes material non-public information to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents anyone other than to the Administrative Agent upon at the address of the Administrative Agent set forth in Section 15.02. Each Lender that desires that certain of its reasonable request until a written notice personnel not receive material non-public information with respect to cease delivering paper copies is given by Borrower and its Subsidiaries or their Affiliates shall so inform the Administrative Agent and (B) the Borrower shall notify designate one or more representatives that shall be permitted to receive from the Administrative Agent (copies of materials and information furnished by facsimile Borrower or electronic mail) of the posting of any such documents and upon its reasonable request, provide other Obligor to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.
Appears in 1 contract
Samples: Term Loan Agreement (Axogen, Inc.)
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of Agent for distribution to each Lender and (provided that, the Issuing Banks:Administrative Agent shall not be required to distribute any document or report to any Lender to the extent such distribution would cause the Administrative Agent to breach or violate any agreement that it has with another Person (including any non-reliance or non-disclosure letter with any Approved Third-Party Appraiser)):
(a) on or before the date that is 100 within 90 days after the end of each fiscal year of the BorrowerBorrower (commencing with the fiscal year ending December 31, (i) an 2018), the audited consolidated balance sheet and the related audited consolidated statements of operations, stockholders’ equity and audited consolidated statements of changes in net assets, audited consolidated statements of cash flows and related audited consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal yearyear (to the extent full fiscal year information is available), all reported on by Deloitte Xxxxx & Touche Xxxxx LLP or any other independent registered public accounting firm accountants of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as national standing to the scope of such audit and effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (which report shall be unqualified as to going concern and scope of audit and shall not contain any explanatory paragraph or paragraph of emphasis with respect to going concern); provided that the requirements set forth in this clause (iia) a management may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of filed by the Borrower and its Subsidiaries for such fiscal year, as compared to amounts with the SEC on Form 10-K for the previous applicable fiscal year;
(b) on or before the date that is within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the BorrowerBorrower (commencing with the fiscal quarter ending March 31, (i) an unaudited condensed 2019), the consolidated balance sheet and unaudited condensed the related consolidated statements of operations, stockholders’ equity and consolidated statements of changes in net assets, consolidated statements of cash flows and related consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and the then elapsed portion of the 110 fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetstatement of assets and liabilities, as of the end of) the corresponding period or periods of the previous fiscal year (to the extent such information is available for the previous fiscal year), all certified by a Financial Officer of the Borrower as presenting fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and ; provided that the requirements set forth in this clause (iib) a management may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of filed by the Borrower and its Subsidiaries with the SEC on Form 10-Q for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal yearapplicable quarterly period;
(c) simultaneously concurrently with the any delivery of each set of financial statements referred to in paragraphs under clause (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year;
(d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and
(e) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.or
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Barings BDC, Inc.)
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of Agent for distribution to each Lender and (provided that, the Issuing Banks:Administrative Agent shall not be required to distribute any document or report to any Lender to the extent such distribution would cause the Administrative Agent to breach or violate any agreement that it has with another Person (including any non-reliance or non-disclosure letter with any Approved Third-Party Appraiser)):
(a) on or before the date that is 100 within 90 days after the end of each fiscal year of the BorrowerBorrower (commencing with the fiscal year ending December 31, (i) an 2020), the audited consolidated balance sheet and the related audited consolidated statements of operations, stockholders’ equity and audited consolidated statements of changes in net assets, audited consolidated statements of cash flows and related audited consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such year, and related notes thereto, setting forth in each case in comparative 108 29135447.6 form the figures for the previous fiscal yearyear (to the extent full fiscal year information is available), all reported on by Deloitte & Touche KPMG LLP or any other independent registered public accounting firm accountants of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as national standing to the scope of such audit and effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (which report shall be unqualified as to going concern and scope of audit and shall not contain any explanatory paragraph or paragraph of emphasis with respect to going concern); provided that the requirements set forth in this clause (iia) a management may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of filed by the Borrower and its Subsidiaries for such fiscal year, as compared to amounts with the SEC on Form 10- K for the previous applicable fiscal year;
(b) on or before the date that is within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the BorrowerBorrower (commencing with the fiscal quarter ending March 31, (i) an unaudited condensed 2021), the consolidated balance sheet and unaudited condensed the related consolidated statements of operations, stockholders’ equity and consolidated statements of changes in net assets, consolidated statements of cash flows and related consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetstatement of assets and liabilities, as of the end of) the corresponding period or periods of the previous fiscal year (to the extent such information is available for the previous fiscal year), all certified by a Financial Officer of the Borrower as presenting fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and ; provided that the requirements set forth in this clause (iib) a management may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of filed by the Borrower and its Subsidiaries with the SEC on Form 10-Q for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal yearapplicable quarterly period;
(c) simultaneously concurrently with the any delivery of each set of financial statements referred to in paragraphs under clause (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year;
(d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and
(e) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any Private-Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (iv) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.or
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Barings Capital Investment Corp)
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of each Lender and the Issuing Banks:
(a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on or before such date have been prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that is 100 such documents are publicly available on “XXXXX” or the Borrower’s website (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year of the Borrower, (i) an audited the consolidated balance sheet sheets of the Borrower and audited its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of operationsincome, stockholdersshareholders’ equity and cash flows of the Borrower as of the end of and its Subsidiaries for such fiscal year, and related notes thereto, setting forth in each case prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, all reported on accompanied by Deloitte a report and opinion thereon of Ernst & Touche Young LLP or any other independent registered public accounting another firm of nationally independent certified public accountants of recognized standingnational standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards, standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope emphasis of such audit and that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as matter of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year;
(b) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year;
(d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and
(e) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception concern footnote or any qualification or exception as to the scope of such audit audit, and shall contain in the statements required case of such consolidated financial statements, certified by paragraph (a) above as if references therein to a Responsible Officer of the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information Borrower; provided that documents required to be provide furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website; provided, however, that any such report shall not be considered qualified due to the inclusion of an emphasis of matter paragraph in the audit opinion based on the impending maturity date of any Indebtedness under Section 5.01(b)this Agreement within 12 months of the date of such report, the prospective breach of any financial covenant hereunder or liquidity issues due to ordinary course liabilities;
(c) together with the financial statements required pursuant to 8.01(a) and the consolidating information referred to in clause (i) above shall be certified b), a compliance certificate signed by a Financial Responsible Officer to of the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position Borrower as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) accounting period (to the extent any such documents are included in materials otherwise filed with the SEC) which delivery may be delivered electronically by electronic communication including fax or email and if so delivered, shall be deemed to have been delivered on be an original, authentic counterpart thereof for all purposes) substantially in the date form of Exhibit E (ia “Compliance Certificate”) on which including details of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.22 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificate. For the avoidance of doubt, no representation or warranty contained in Section 7.07, Section 7.18 or Section 7.22 is required to be, shall be or shall be deemed to be made in connection with a delivery of any Compliance Certificate;
(d) after being prepared by the Borrower posts such documentsand approved by its Board, or provides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by promptly following the Administrative Agent)’s request therefor, a consolidated budget for the Borrower and its Subsidiaries for the fiscal year to which such budget relates; provided that: , for each fiscal year, on or before the sixtieth (A60th) day following the beginning of such fiscal year, the Borrower shall deliver paper copies of prepare, and its Board shall approve such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent consolidated budget for such fiscal year, and (B) the Borrower shall notify the Administrative Agent promptly after the Board has given such approval;
(e) promptly after the same are released, copies of all press releases (other than any press release that is immaterial, routine or administrative in nature); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by facsimile an Obligor thereof, copies of each notice or electronic mailother correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor, in each case, excluding any investigation or inquiry that is immaterial, routine or administrative in nature; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the posting stockholders of each Obligor and its Subsidiaries (other than any report or any communication that is immaterial, routine or administrative in nature), and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(h) the information regarding insurance maintained by the Borrower and its Subsidiaries as and when required under Section 8.05;
(i) promptly, and in any event within five (5) Business Days after the Borrower obtains knowledge of any such documents and upon its reasonable requestClaim related to any Product or inventory involving more than $2,500,000 (or the Equivalent Amount in other currencies), provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, written notice thereof from a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion Responsible Officer of the Borrower Materials that may be distributed which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) as soon as possible and in any event within five (5) Business Days after the end of each fiscal month, evidence reasonably satisfactory to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, based upon the ArrangersBorrower’s bank account statements that the Borrower has met its minimum liquidity requirement set out in Section 10.01; and[reserved]; and
(k) such other information respecting the businesses, financial performance, operations condition of the Issuing Banks and assets or liabilities of the Lenders to treat such Borrower Materials as not containing any Private-Side Information Obligors (provided, however, that including with respect to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12Collateral), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through taken as a portion of the Platform designated “Public Side Information”whole, and (iv) as the Administrative Agent and the Arrangers shall be entitled may from time to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”time reasonably request.
Appears in 1 contract
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of Agent for distribution to each Lender and the Issuing BanksLender:
(a) As soon as available, but in any event within five Business Days after the date on which such financial statements are required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of its Fiscal Years commencing with the Fiscal Year ending December 31, 2024 (or, if such financial statements are not required to be filed with the SEC, on or before the date that is 100 ninety (90) days after the end close of each fiscal year such Fiscal Year), audited consolidated financial statements of the BorrowerBorrower and its Subsidiaries for such Fiscal Year, (i) an audited including its consolidated balance sheet as at the end of such Fiscal Year and audited related consolidated statements of operationsincome, stockholders’ changes in equity and cash flows of the Borrower as of the end of and for such year, and related notes theretoFiscal Year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous fiscal yearFiscal Year, all reported on and prepared in accordance with GAAP and accompanied by Deloitte & Touche LLP or any other an opinion of independent registered certified public accounting firm accountants of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or and without any qualification or exception as to the scope of such audit (other than any such qualification or exception that is expressly with respect to, or expressly resulting from, (i) an upcoming maturity date under this Agreement or (ii) any prospective default or event of default in respect of Section 6.04) (it being understood and agreed that such consolidated report and opinion may include an explanatory note that is not a “going concern” exception or qualification or exception as to the scope of the audit performed as set forth above), and which opinion shall state that such audit was conducted in accordance with generally accepted auditing standards and said financial statements present fairlyfairly present, in all material respects, the financial condition and results of operation of the Borrower and its consolidated financial position Subsidiaries on a consolidated basis as of at the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis Fiscal Year in accordance with GAAP consistently applied and applied.
(iib) a management report setting forth a narrative report and management’s discussion and analysis As soon as available, but in any event within five Business Days after the date on which such financial statements are required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of the first three Fiscal Quarters of each of its Fiscal Years commencing with the Fiscal Quarter ending September 30, 2024 (or, if such financial condition and results statements are not required to be filed with the SEC, on or before the date that is forty-five (45) days after the end of operations such Fiscal Quarter), unaudited consolidated financial statements of the Borrower and its Subsidiaries for such fiscal yearFiscal Quarter, including its consolidated unaudited balance sheets as compared to amounts for the previous fiscal year;
(b) on or before the date that is 45 days after at the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an such Fiscal Quarter and related consolidated unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operationsincome, stockholders’ changes in equity and cash flows of the Borrower as of the end of and for such fiscal quarter Fiscal Quarter and the then then-elapsed portion of the fiscal yearsuch Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearFiscal Year, all certified by the Borrower executed on its behalf by a Financial Officer of the Borrower as presenting fairly, fairly in all material respects, respects the consolidated financial position as of the end of, condition and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis as at the end of, and for, the period covered thereby in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;.
(c) simultaneously Simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) aboveFinancial Statements, a certificate Compliance Certificate with respect to the fiscal period covered by such financial statements.
(d) Promptly (or, with respect to decline in Index Debt Rating, within five (5) Business Days) after any Rating Agency shall have announced a change in such Rating Agency’s Index Debt Rating, written notice of such change in such Index Debt Rating.
(e) As soon as possible and in any event within ten (10) Business Days after the Borrower has Knowledge that any of the events or conditions specified below has occurred or exists with respect to any Plan or Multiemployer Plan that would reasonably be expected (individually or in the aggregate) to result in a Material Adverse Effect, notice of the same and a statement, signed by the Borrower executed on its behalf by a Financial Officer describing said event or condition and the action which the Borrower or applicable member of the Controlled Group proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to the PBGC by the Borrower or applicable member of the Controlled Group with respect to such event or condition):
(i) certifying the occurrence of any Reportable Event, or any waiver shall be requested under Section 412(c) of the Code with respect to any Plan;
(ii) the receipt by the Borrower or any member of the Controlled Group from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan or the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or any action taken by the Borrower, any of its Subsidiaries or any member of the Controlled Group to terminate any Plan under Section 4041(c) of ERISA or the Borrower, any of its Subsidiaries or any member of the Controlled Group would reasonably be expected to incur any liability under Title IV of ERISA with respect to the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from any Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Plan or Multiemployer Plan by the Borrower, any of its Subsidiaries or any member of the Controlled Group that would reasonably be expected to result in liability of the Borrower, any of its Subsidiaries or such Controlled Group member under Title IV of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default), or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from a Multiemployer Plan that it is insolvent pursuant to whether Section 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA;
(v) the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice or the receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice concerning the imposition of any liability arising from a complete or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or would reasonably be expected to be, insolvent or in endangered, critical or critical and declining status;
(vi) the institution of a proceeding by a fiduciary of any Multiemployer Plan against the Borrower, any of its Subsidiaries or any member of the Controlled Group to enforce Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(vii) the adoption of an amendment to any Plan that would result in the loss of tax exempt status of the trust of which such Plan is a part if the Borrower, any of its Subsidiaries or any member of the Controlled Group fails to timely provide security to the Plan in accordance with the provisions of Section 436 of the Code and Section 206 of ERISA.
(f) Promptly upon the filing thereof, copies of all registration statements (other than Form S-8 or any similar form) and annual (other than Form 11-K or any similar form), quarterly, monthly or other regular reports which the Borrower or any of its Subsidiaries files with the SEC, in each case to the extent not otherwise required to be delivered under this Agreement.
(g) Promptly upon the furnishing thereof to all shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so furnished, in each case to the extent not otherwise required to be delivered under this Agreement.
(h) Promptly, and in any event within five (5) Business Days, after the Borrower obtains Knowledge thereof, notice of the occurrence of a Default has occurred and, if a Default has occurredor Event of Default, specifying the details nature thereof and any what action taken or proposed the Borrower proposes to be taken take with respect thereto thereto.
(i) Promptly, and in any event within ten (10) Business Days, after the Borrower obtains Knowledge thereof, (i) the pendency or commencement of any litigation, arbitration or governmental proceeding against the Borrower or any Subsidiary which, in the opinion of the Borrower’s management, if adversely determined, would have or would reasonably be expected to have a Material Adverse Effect and (ii) setting forth the institution of any proceeding against any Loan Party or any of its Subsidiaries with respect to, or the receipt of notice by such Person of potential liability or responsibility for violation or alleged violation of, any law, rule or regulation (including any Environmental Law) which would reasonably detailed calculations be expected to have a Material Adverse Effect.
(Aj) Upon the reasonable request of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period andAdministrative Agent or any Lender, certificates of insurance coverage with respect to any Test Period in which the covenant set forth in insurance required by Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year 5.04 or copies of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year;applicable policies.
(dk) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and
(e) promptly Promptly following any reasonable request therefor, (i) any documentation or such other information that (including nonfinancial information) as the Administrative Agent on its own behalf or on behalf of any other Lender may from time to time reasonably request and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender may reasonably request in order to comply for purposes of compliance with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower . Documents or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be delivered or provided under pursuant to Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall contain the statements required by paragraph (a) above as if references therein to the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information required to be provide under Section 5.01(b)) and the consolidating information referred to in clause (i) above shall be certified by a Financial Officer to the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal periodSection 5.01(d), of CWH or such other parent company or of the BorrowerSection 5.01(e), as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a5.01(f) or 5.01(b) (to the extent any such documents are included in materials otherwise filed with the SECSection 5.01(g) may be delivered electronically and if so delivered, shall be deemed to have been so delivered on the date (ix) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s public website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)), or (iiy) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website (including the SEC’s XXXXX website), if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (B) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will may make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties Borrower hereunder (collectively, “Borrower Company Materials”) by posting the Borrower Company Materials on IntraLinks, SyndTrak or another similar electronic system (the “an Approved Electronic Platform”) and (b) . The Borrower hereby acknowledges that certain of the Lenders may from time to time elect to be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The and the Borrower hereby agrees that it will identify in writing that portion of the Borrower (w) all Company Materials that may are to be distributed made available to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (iix) by marking Borrower Company Materials “PUBLIC”, ,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks Agent and the Lenders to treat such Borrower Company Materials as either publicly available information or not containing any Private-Side Information material information (provided, however, that although it may be sensitive and proprietary) with respect to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12)or its securities for purposes of United States Federal and state securities laws, (iiiy) all Borrower Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Approved Electronic Platform designated “Public Side Information”, Investor” and (ivz) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Approved Electronic Platform not designated “Public Side InformationInvestor.”.
Appears in 1 contract
01Financial Statements and Other Information. Holdings or the The Borrower will furnish to the Administrative Agent, on behalf of each Lender and the Issuing Banks:
(a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on or before such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that is 100 such documents are publicly available on “XXXXX” (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year of the Borrower, (i) an audited the consolidated balance sheet sheets of the Borrower and audited its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of operationsincome, stockholders’ equity and cash flows of the Borrower as of the end of and its Subsidiaries for such fiscal year, and related notes thereto, setting forth in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, all reported on accompanied by Deloitte a report and opinion thereon of Ernst & Touche Young U.S. LLP or any other independent registered public accounting another firm of nationally independent certified public accountants of recognized standingnational standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards, standards and such report and opinion shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope emphasis of such audit and that such consolidated financial statements present fairly, in all material respects, the consolidated financial position as matter of the end of, and results of operations and cash flows for, such fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year;
(b) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) an unaudited condensed consolidated balance sheet and unaudited condensed consolidated statements of operations, stockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly, in all material respects, the consolidated financial position as of the end of, and results of operations and cash flows for, such fiscal quarter and such portion of the fiscal year of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management report setting forth a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations (A) of Consolidated EBITDA and the Total Net Leverage Ratio for the applicable period and, with respect to any Test Period in which the covenant set forth in Section 6.11(a) is applicable, demonstrating compliance with Section 6.11(a) and (B) in the case of financial statements referred to in paragraph (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2022 (and only if the ECF Percentage for such fiscal year is above 0.0%), of Excess Cash Flow for such fiscal year;
(d) not later than 75 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget); and
(e) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing reports on Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower, CWH or any other parent company of the Borrower filed with the SEC and containing such information; provided that (i) to the extent such information relates to CWH or another parent company of the Borrower, such information includes consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to CWH or such other parent company, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, shall not be subject to any “going concern” or like qualification or exception concern footnote or any qualification or exception as to the scope of such audit audit, and shall contain in the statements required case of such consolidated financial statements, certified by paragraph (a) above as if references therein to a Responsible Officer of the Borrower were references to CWH or such other parent company and (iii) such information (to the extent such information is in lieu of information Borrower; provided that documents required to be provide under furnished pursuant to this Section 5.01(b)8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(c) together with the financial statements required pursuant to Section 8.01(a) and (b), a compliance certificate signed by the consolidating information referred to in clause (i) above shall be certified by a Financial chief financial or accounting Responsible Officer to of the effect that such consolidated financial statements or consolidating information present fairly in all material respects the consolidated financial position Borrower as of the end of the applicable fiscal period, and consolidated results of operations and cash flows for such fiscal period, of CWH or such other parent company or of the Borrower, as the case may be, in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or 5.01(b) accounting period (to the extent any such documents are included in materials otherwise filed with the SEC) which delivery may be delivered electronically by electronic communication including fax or email and if so delivered, shall be deemed to have been delivered on be an original, authentic counterpart thereof for all purposes) substantially in the date form of Exhibit E (a “Compliance Certificate”) including (i) on which the Borrower posts details of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 to be incorrect in any material respect (or in any respect if such documents, representation or provides a link thereto, on the Borrower’s website on the Internet warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d))time of delivery of a Compliance Certificate, or and (ii) on which for any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower is in compliance with the Minimum Revenue Covenant as of the last day of such documents are posted on period;
(d) after being prepared by the Borrower’s behalf on an Internet or intranet websiteBorrower and approved by its Board, if any, to which each Lender and Issuing Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by promptly following the Administrative Agent)’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that: , for each fiscal year, on or before the seventy-fifth (A75th) day following the beginning of such fiscal year, the Borrower shall deliver paper copies of prepare, and its Board shall approve such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent consolidated financial forecast for such fiscal year, and (B) the Borrower shall notify the Administrative Agent promptly after the Board has given such approval;
(e) promptly after the same are released, copies of any press release required by facsimile U.S. securities laws to be filed with the SEC (excluding, for the avoidance of doubt, marketing press -69- 268911794 v5 releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or electronic mailother correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(h) the information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05;
(i) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) Borrower which notice shall include a statement setting forth details of such documents. The Administrative Agent shall have no obligation to request return, recovery, dispute or claim;
(j) together with the delivery of or maintain paper copies of the documents referred Compliance Certificate, evidence satisfactory to above, and each Lender and Issuing Bank shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive Private-Side Information. The Borrower hereby agrees that it will identify in writing that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, based upon the ArrangersBorrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and
(k) such other information respecting the businesses, financial performance, operations condition of the Issuing Banks and assets or liabilities of the Lenders to treat such Borrower Materials as not containing any Private-Side Information Obligors (provided, however, that including with respect to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12Collateral), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through taken as a portion of the Platform designated “Public Side Information”whole, and (iv) as the Administrative Agent and the Arrangers shall be entitled may from time to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”time reasonably request.
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