Certificates; Other Information. Deliver to the Administrative Agent: (a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower; (b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year; (c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally; (e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability; (f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and (g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 3 contracts
Samples: Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, substantive management letters or substantive recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are publicly available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or any other Governmental Authority) concerning any material investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(f) within (i) ninety (90) days after the close of each fiscal year of each Significant Insurance Subsidiary, copies of the Annual Statement of each of the Significant Insurance Subsidiaries, as certified by the president, secretary and treasurer of and the actuary for each such Significant Insurance Subsidiary and prepared on the NAIC annual statement blanks (or such other form as shall be required by the jurisdiction of incorporation of each such Significant Insurance Subsidiary), all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein and (ii) one hundred eighty (180) days after the close of each fiscal year of each Significant Insurance Subsidiary, copies of the certification by independent certified public accountants reasonably acceptable to the Administrative Agent if so required by any Governmental Authority with respect to such Annual Statements;
(g) within sixty (60) days after the close of each fiscal quarter of each Significant Insurance Subsidiary, copies of the Quarterly Statement of each of the Significant Insurance Subsidiaries, as certified by the president, secretary and treasurer of and the actuary for each such Significant Insurance Subsidiary and prepared on the NAIC quarterly statement blanks (or such other form as shall be required by the jurisdiction of incorporation of each such Insurance Subsidiary), all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein;
(h) promptly upon any Loan Party’s receipt thereof, copies of reports or valuations prepared by any Governmental Authority or actuary in respect of any action or event which has resulted in the reduction by 5% or more in the capital and surplus of any Insurance Subsidiary;
(i) promptly and in any event within ten (10) days after learning thereof, notification of any decrease after the date hereof in the rating given by A.M. Best & Co. in respect of any Insurance Subsidiary;
(j) with each Letter of Credit Application for a Secured Letter of Credit and within ten (10) Business Days after the end of each calendar month when a Secured Letter of Credit is in place, a Borrowing Base Certificate executed by a Responsible Officer. For purposes of such report and of completing the Borrowing Base Certificate required under this Section 6.02(j), Eligible Collateral shall be valued based on its Fair Market Value as at the last Business Day of the calendar month for which such report or Borrowing Base Certificate is being delivered;
(k) promptly, at the reasonable request of the Administrative Agent or at any Lendertime any Secured Letter of Credit is outstanding, copies a Borrowing Base Certificate for any given Business Day executed by a Responsible Officer of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Borrower; and
(fl) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Arrangers will make available to the Lenders and the Issuing Lenders Fronting Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerJoint Arrangers, the Issuing Lender L/C Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger Joint 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 Investor.”
Appears in 3 contracts
Samples: Credit Agreement (Torchmark Corp), Credit Agreement (Torchmark Corp), Credit Agreement (Torchmark Corp)
Certificates; Other Information. Deliver to the Administrative Agent:Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in this Section 6.02):
(a1) concurrently with no later than five (5) days after the delivery of the financial statements referred to in Sections 8.1(a6.01(1) and (b2) (commencing with such delivery for the fiscal year ended on or about December 30, 2017), a duly completed Officer’s Compliance Certificate signed by a Responsible Financial Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d2) promptly after the same are publicly available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all special reports and written information to and from registration statements which the United States Environmental Protection Agency, Borrower or any state Restricted Subsidiary files with the SEC or local agency responsible for environmental matterswith any Governmental Authority that may be substituted therefor or with any national securities exchange, as the United States Occupational Health case may be (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8), and Safety Administration, or in any state or local agency responsible for health and safety matters, or case not otherwise required to be delivered to the Administrative Agent pursuant to any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f3) promptly after the furnishing thereof, copies of any notices of default to any holder of any class or series of debt securities of any Loan Party having an aggregate outstanding principal amount greater than the Threshold Amount or pursuant to the terms of the Second Lien Credit Agreement so long as the aggregate outstanding principal amount thereunder is greater than the Threshold Amount (in each case, other than in connection with any board observer rights) and not otherwise required to be furnished to the Administrative Agent pursuant to any other clause of this Section 6.02;
(4) together with the delivery of the Compliance Certificate with respect to the financial statements referred to in Section 6.01(1), (a) a report setting forth the information required by Section 1(a) of the Perfection Certificate (or confirming that there has been no change in such information since the later of the Closing Date or the last report delivered pursuant to this clause (a)) and (b) a list of each Subsidiary of the Borrower that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such list or a confirmation that there is no change in such information since the later of the Closing Date and the last such list; and
(5) promptly, but subject to the limitations set forth in Section 6.10 and Section 10.09, such additional information regarding the business, business and financial or corporate affairs of the Borrower any Loan Party or any Material Subsidiary that is a Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time on its own behalf or on behalf of any Lender reasonably request in writing from time to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)time. Documents required to be delivered pursuant to Section 8.1(a) or (b) 6.01 or Section 8.2(d6.02(2) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s (or any Parent Company’s) website on the Internet at the website address listed on Schedule 10.02 hereto (or as such address may be updated from time to time in accordance with Section 12.1(b10.02); or (b) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: that (i) upon written request by the Administrative Agent, the Borrower shall will deliver paper copies of such documents to the Administrative Agent or for further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any Lender that requests the Borrower such information to deliver such paper copies Public Lenders as described in this Section 6.02) until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and or link and, upon the Administrative Agent’s 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery to it or of paper copies of such documents from the Administrative Agent 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 Lenders Banks materials and/or or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Intralinks, SyndTrak, ClearPar or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public any information with respect to the Borrower Holdings, their Subsidiaries or its securities) their respective securities that is not Public-Side Information, and who may be engaged in investment and other market-related activities with respect to such Person’s securities (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1i) it will use commercially reasonable efforts to identify that portion of at the Administrative Agent’s request, all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials shall Lenders will be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall will appear prominently on the first page thereof, ; (3ii) by marking Borrower Materials “PUBLIC,” the Borrower shall will be deemed to have authorized the Administrative Agent, the Arranger, Lenders and the Issuing Lender and the Lenders Banks to treat such Borrower Materials as not containing any material nononly Public-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall will be treated as set forth in Section 12.1110.09), ; (4iii) all Borrower Materials marked “PUBLIC” and, except to the extent the Borrower notifies the Administrative Agent to the contrary, any Borrower Materials provided pursuant to Sections 6.01(1), 6.01(2) or 6.02(1) are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (5iv) the Administrative Agent and the Arranger Arrangers shall be entitled to treat any Borrower Materials that are not marked specifically identified as “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public InvestorSide Information.”” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx the Borrower Materials “PUBLIC.” Anything to the contrary notwithstanding, nothing in this Agreement will require Holdings, the Borrower or any Subsidiary to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter, or provide information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure is prohibited by Law or binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product; provided that in the event that the Borrower does not provide information that otherwise would be required to be provided hereunder in reliance on the exclusions in this paragraph relating to violation of any obligation of confidentiality, the Borrower shall use commercially reasonable efforts to provide notice to the Administrative Agent promptly upon obtaining knowledge that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality).
Appears in 3 contracts
Samples: First Lien Credit Agreement (McAfee Corp.), First Lien Credit Agreement (McAfee Corp.), First Lien Credit Agreement (McAfee Corp.)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by a Responsible Officer of the Borrowerelectronic communication including fax or e-mail and shall be deemed to be an original authentic counterpart thereof for all purposes);
(b) within ninety (90) days concurrently with the delivery of the start of each Fiscal Year of the Borrowerfinancial statements referred to in Sections 7.01(a) and (b), the annual business plan of the Borrower and its Subsidiariesa duly completed Unencumbered Pool Report (which delivery may, in form and substance as agreed by the unless Administrative Agent prior or a Lender requests executed originals, be by electronic communication including fax or e-mail and shall be deemed to the Closing Date and containing projected financial statements be an original authentic counterpart thereof for each quarter of such Fiscal Yearall purposes);
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower Parent or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the promptly after request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and written information registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) not later than seven (7) Business Days after the Parent or the Borrower receives notice of the same from any Rating Agency or otherwise learns of the United States Environmental Protection same, notice of the issuance of any change or withdrawal in the Credit Rating by any Rating Agency in respect of the Parent or the Borrower, together with the details thereof, and of any announcement by such Rating Agency that any such Credit Rating is “under review” or that any such Credit Rating has been placed on a watch list or that any similar action has been taking by such Rating Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) to the extent applicable, promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of Parent or Borrower pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by Parent or Borrower, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party unless restricted from doing so by such agency;
(h) promptly, such additional reasonable and customary information regarding the business, financial or corporate affairs of the Parent or Borrower or any SubsidiaryUnencumbered Pool Property, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request request, to the extent the confidentiality of such information is not required by in a Loan Party’s possession or control; and
(i) Requirement promptly provide (i) upon request of Law the Administrative Agent or any Lender, confirmation of the accuracy of the information set forth in the most recent Certificate of Beneficial Ownership provided to the Administrative Agent and Lenders; (ii) a contractual obligation new Certificate of Beneficial Ownership, in form and substance acceptable to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not and each Lender, when the individual(s) to be made more than once in any calendar year) within thirty (30) days of such request, identified as a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), Beneficial Owner have changed; and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date upon request of the prior certificate Administrative Agent or any Lender, such other information and documentation as may reasonably be requested by Administrative Agent or such Lender from time to time for purposes of compliance by Administrative Agent or such Lender with applicable laws (orincluding without limitation the USA Patriot Act and other “know your customer” and anti-money laundering rules and regulations), in the case of the first and any policy or procedure implemented by Administrative Agent or such certificate, the Closing Date)Lender to comply therewith. Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its written request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Parent and Borrower hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Parent and Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Parent, Borrower or its securities) (eachtheir Affiliates, a “Public Lender”)or the respective Equity Interests of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ Equity Interests. At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Parent and Borrower hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Parent and Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Parent and Borrower or its securities their Equity Interests for purposes of United States Federal federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 3 contracts
Samples: Revolving Credit Agreement (Agree Realty Corp), Revolving Credit Agreement (Agree Realty Corp), Revolving Credit and Term Loan Agreement (Agree Realty Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) Reserved;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (bc), a duly completed Officer’s Compliance Certificate (in the form attached hereto as Exhibit E) signed by a Responsible Officer of the Borrower;
(bc) within ninety (90) days of promptly after the start same are available, copies of each Fiscal Year annual report, proxy or financial statement or other report or communication sent to the equityholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the annual business plan Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Borrower Securities Exchange Act of 1934, and its Subsidiaries, in form and substance as agreed by not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(cd) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports any statement or report furnished to any holder of debt securities of Borrower pursuant to the terms of any indenture, loan or credit or similar agreement and written information not otherwise required to and from be furnished to the United States Environmental Protection Agency, Lenders pursuant to Section 6.01 or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by the Borrower, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Borrower; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any SubsidiaryBorrower, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (bc) or Section 8.2(d6.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(ba printable format, such as a PDF document, 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 10.02, or in the Compliance Certificate accompanying such delivered document; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request for deliverydelivery by a Lender, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “the "Borrower Materials”") by posting the delivering such Borrower Materials (whether electronically, posting such Borrower materials on SyndTrak Online or another similar an electronic system (the “Platform”or otherwise) and (b) certain of the Lenders (each, a "Public Lender") may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person's securities) (each, . Any Lender which desires to be a “Public Lender”). At any time after Lender shall be required to deliver written notice to the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by Borrower and the Administrative Agent of such Lender's election (and until the Administrative Agent provides written confirmation to the Borrower that any such Lender is of receipt of such election, such Lender shall not be considered a Public Lender, the Lender for purposes hereunder). The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “"PUBLIC,” " the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “Public Investor,” to all Lenders;" and (5z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “"PUBLIC” " as being suitable only for posting on distribution to Lenders who have not identified themselves as a portion of Public Lender in accordance with the Platform not designated “Public Investorterms hereof. Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any borrower Materials "PUBLIC".”
Appears in 2 contracts
Samples: Credit Agreement (Voya PRIME RATE TRUST), Credit Agreement (Voya PRIME RATE TRUST)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerCompany;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Company by independent accountants in connection with the accounts or books of the Borrower Company or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Company, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilitySubsidiary thereof;
(f) in the event the Company or any Domestic Subsidiary shall (i) engage in any corporate reorganization, (ii) contribute to the capital of or otherwise make an Investment in any Subsidiary or (iii) consummate any Disposition of property described in Section 7.05(e), in each case other than in the ordinary course of business, which transaction shall result in Domestic Subsidiaries that are not Domestic Subsidiary Guarantors (x) the total assets of which, in the aggregate, exceed fifteen percent (15.0%) of the total assets of the Company and its Domestic Subsidiaries in the aggregate or (y) the EBITDA of which, in the aggregate for the most recent fiscal quarter, exceeds fifteen percent (15.0%) of the EBITDA of the Company and its Domestic Subsidiaries in the aggregate for such fiscal quarter, the Company shall, promptly and in any event within thirty days of the consummation of such transaction, deliver to the Administrative Agent a supplement to Schedule 5.19 necessary to make the representation set forth in Section 5.19 true and correct as of the date of such supplement; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Company shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the any Borrower or its securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Watts Water Technologies Inc), Credit Agreement (Watts Water Technologies Inc)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (bSection 6.01(a), a duly completed Officer’s Compliance Certificate signed by certificate of its independent certified public accountants to the effect that they have read a Responsible Officer copy of this Agreement, and that, in making the Borrowerexamination necessary to said certification, they have obtained no knowledge of any Default, or if such accountants shall have obtained knowledge of any then existing Default they shall disclose in such statement any such Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default;
(b) within ninety (90) days in form and detail reasonably satisfactory to the Administrative Agent, concurrently with the delivery of the start financial statements referred to in Sections 6.01(a) and (b) commencing as of each Fiscal Year the first fiscal quarter of the Borrower after the Closing Date, a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, chief accounting officer, treasurer or controller of the Borrower, including a list that identifies (i) each Material Domestic Subsidiary formed or acquired during the annual business plan of the Borrower and its Subsidiariesfiscal quarter then ended, in form and substance as agreed including pursuant to a merger or Investment permitted by the Administrative Agent prior provisions of this Agreement, (ii) each Domestic Subsidiary (other than U.S. Cellular, the Excluded Subsidiary and any of their Subsidiaries) designated as a Material Subsidiary pursuant to Section 6.14(a)(i) during the Closing Date fiscal quarter then ended and containing projected financial statements for (iii) each Material Domestic Subsidiary that was Disposed of during the fiscal quarter of such Fiscal Yearthen ended, including pursuant to a sale, merger, dissolution, liquidation, consolidation or other Disposition;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form each 10-K, 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon statement which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon to the request of extent permitted by applicable law, promptly, and in any event within five Business Days after receipt thereof by the Administrative Agent Borrower or any LenderSubsidiary, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by the enforcement division of such agency regarding financial or other operational results of the Borrower or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents Information required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such information is included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent or any Lender, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any such Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or pdf copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or CoBank, as the Arrangers Lead Arranger, will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar confidential and secure electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a . All Borrower Materials that have been filed with the SEC and available on the SEC’s XXXXX system shall be deemed “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the PUBLIC.” The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials (if any) that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and CoBank, as the Arranger Lead Arranger, 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 that is not designated “Public InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Telephone & Data Systems Inc /De/), Credit Agreement (Telephone & Data Systems Inc /De/)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate in form of Exhibit C signed by a Responsible Officer of the BorrowerBorrower and a Responsible Officer of the MLP;
(b) within ninety (90) days promptly after the same are available, copies of each annual report, proxy or financial statement or other report or written communication sent to the equity owners of the start MLP, and copies of each Fiscal Year all annual, regular, periodic and special reports and registration statements which the MLP may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the BorrowerSecurities Exchange Act of 1934, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) promptly after execution thereof, copies of Material Agreements and any request by material amendment thereto;
(d) no later than ten (10) days after any Company’s receipt of any Net Cash Proceeds resulting from a Triggering Sale, a Triggering Sale Certificate relating to such Triggering Sale;
(e) no later than ten (10) days after any Company has Reinvested any Reduction Amount, a Reinvestment Certificate describing the amount, date and particulars relating to the Reduction Amount so Reinvested; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party as the Administrative Agent or Agent, at the request of any Lender, may from time to time reasonably request, which information may include copies of any detailed audit reports, if any, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Markwest Energy Partners L P), Credit Agreement (Markwest Hydrocarbon Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) concurrently with no later than five days after the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days promptly after the same are publicly available, copies of the start of each Fiscal Year of the Borrowerall annual, regular, periodic and special reports and registration statements which Parent, the annual business plan of Borrower or any Restricted Subsidiary files with the Borrower and its SubsidiariesSEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) and substance as agreed by in any case not otherwise required to be delivered to the Administrative Agent prior pursuant to the Closing Date and containing projected financial statements for each quarter any other clause of such Fiscal Yearthis Section 6.02;
(c) promptly after any request by the Administrative Agent or any Lenderfurnishing thereof, copies of any detailed audit reports, management letters or recommendations submitted material written notices received by any Loan Party (other than in the ordinary course of business) pursuant to the board terms of directors any First Lien Loan Document, First Lien Credit Agreement Refinancing Indebtedness, First Lien Incremental Equivalent Debt, Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or Permitted Ratio Debt (or the audit committee and, in each case, any Permitted Refinancing thereof), in each case, in a principal amount in excess of the board Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any other clause of directors) of the Borrower by independent accountants in connection with the accounts Section 6.01, 6.02 or books of the Borrower or any Subsidiary, or any audit of any of them6.03;
(d) promptly after together with the same are availabledelivery of each Compliance Certificate pursuant to Section 6.02(a), (i) copies in the case of Form 10-Q quarterly reportsannual Compliance Certificates only, Form 10-K annual reports, a report setting forth the legal name and Form 8-K current reports, the jurisdiction of formation of each Loan Party and the location of the chief executive office of each Loan Party on the Perfection Certificate or confirming that there has been no change in such information since the Closing Date or the date of the last such report; (ii) a description of each event, condition or circumstance during the last fiscal quarter or fiscal year covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) (to the extent notice of (and, upon the request of such event has not been previously furnished to the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice a list of (and, upon the request each Subsidiary of Parent that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the Administrative Agent, copies of) date of delivery of such Compliance Certificate (to the extent that there have been any other information that is provided by Borrower to its shareholders generallychanges in the identity or status as a Restricted Subsidiary or Unrestricted Subsidiary of any such Subsidiaries since the Closing Date or the most recent list provided);
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;[reserved]; and
(f) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower Loan Parties or any Subsidiaryof their respective Restricted Subsidiaries, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request to request. In no event shall the extent the confidentiality of such information is not required by (irequirements set forth in Section 6.02(f) Requirement of Law or (ii) a contractual obligation to which require Parent, the Borrower or any of its the Restricted Subsidiaries is bound; and
(g) upon request by the Administrative Agent (to provide any such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing information which (i) all applications, if any, for Copyrights, Patents constitutes non-financial trade secrets or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)non-financial proprietary information, (ii) all issuances in respect of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents which disclosure to the Administrative Agent or any Lender that requests the Borrower (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent attorney-client or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile similar privilege or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “publicconstitutes attorney work-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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investorproduct.”
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Global Eagle Entertainment Inc.), Second Lien Credit Agreement (Global Eagle Entertainment Inc.)
Certificates; Other Information. Deliver The Borrower shall deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), (commencing with the delivery of the financial statements for the Fiscal Quarter ended June 30, 2021), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower, together with, to the extent that any Acquisitions were consummated during the Fiscal Quarter covered by such Compliance Certificate, an acquisition valuation model prepared by the Borrower with respect to all Acquisitions consummated during such Fiscal Quarter;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(iiid) notice promptly, following each issuance of (andQualified Preferred Stock, upon the request a listing of the Administrative Agentnames, copies ofaddresses, fax numbers (if available) any other information that is provided and number of shares of Qualified Preferred Stock acquired by Borrower to its shareholders generallyeach Person in such issuance;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and each written information to and notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding a possible violation of securities Laws arising from the public reporting of financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilitySubsidiary thereof;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request;
(g) promptly following any request to therefor, information and documentation reasonably requested by the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower Administrative Agent or any Lender for purposes of its Subsidiaries is boundcompliance with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(gh) upon request by to the Administrative Agent (such request not to be made more than once in extent any calendar year) within thirty (30) days of such requestLoan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined an updated Beneficial Ownership Certification promptly following any change in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, information provided in the case Beneficial Ownership Certification delivered to any Lender in relation to such Loan Party that would result in a change to the list of the first beneficial owners identified in such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)certification. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 1.01(a); 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent and each of the Lenders. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (ai) the Administrative Agent and/or the Arrangers will an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online to IntraLinks, Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) and (bii) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent Agent, any Affiliate thereof and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Carriage Services Inc), Credit Agreement (Carriage Services Inc)
Certificates; Other Information. Deliver to the Administrative AgentLender, in form and detail consistent with comparable reports previously delivered to the Lender or otherwise reasonably satisfactory to the Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a), (b) and (bc), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower or any SubsidiaryLoan Party, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any Governmental Authority that may be substituted therefore, or with any national securities exchange, and in any case not otherwise required to be delivered to the Lender pursuant hereto;
(iiid) notice of (and, upon promptly after the request of the Administrative Agentfurnishing thereof, copies of) of any statement or report furnished to any holder of debt securities of any Loan Party pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lender pursuant to any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) as soon as available and in any event within thirty (30) days after the end of each fiscal quarter, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and containing such additional information as the Lender may reasonably specify;
(f) promptly and in any event within five Business Days after receipt thereof by any Loan Party, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party;
(g) promptly upon the request of the Administrative Agent or any Lender, copies of all notices, requests, pleadings and other documents received by any Loan Party (and not otherwise distributed to the Lender) under or pursuant to any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Lender, such information and reports regarding such instruments, indentures and written information to loan and from credit and similar agreements as the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityLender may reasonably request;
(fh) promptly after the assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance by any Loan Party with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Change or (ii) cause any property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Loan Parties with the Bankruptcy Court in the Cases, or distributed on behalf of any of the Loan Parties to any Committee, providing copies of the same to the Lender;
(j) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any SubsidiaryLoan Party, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gk) promptly upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such requestreceipt thereof, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to correspondence or orders from the Borrower or its securities for purposes City of United States Federal and state securities laws (provided, however, that to Chicago regarding the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 InvestorChicago Gates.”
Appears in 2 contracts
Samples: Debtor in Possession Credit and Security Agreement, Debtor in Possession Credit and Security Agreement (Ata Holdings Corp)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerHoldings;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the any Borrower by independent accountants in connection with the accounts or books of the such Borrower or any SubsidiarySubsidiary thereof, or any audit of any of them;
(c) at least once in any calendar year, and in any event within 60 days of the date the below referenced budget or strategic plan, as the case may be, is approved by the board of directors of Holdings, (i) an annual budget of Holdings and its Subsidiaries in form reasonably satisfactory to the Administrative Agent prepared by Holdings for each fiscal month of the fiscal year covered by such budget prepared in detail and (ii) a strategic plan prepared in summary form; and, in the case of the annual budget, such budget shall be prepared in detail with appropriate presentation and discussion of the principal assumptions upon which such budget is based, accompanied by the statement of a Responsible Officer of Holdings to the effect that the budget is a reasonable estimate for the period covered thereby (it being understood that actual results may vary significantly from any such projected or forecasted results);
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any statement or report furnished to any holder of (and, upon the request public debt securities of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developments, terms of any indenture or similar document governing such public debt securities and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the any Borrower or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent (or any Lender through the Administrative Agent) may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d(to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which any Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on such Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: that (i) the each Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the such Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the applicable Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance Holdings or the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to any of the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSection 6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial offer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board Board of directors Directors (or the audit committee of the board Board of directorsDirectors) of the Borrower Company or, after the Debt Assumption, BRBR, by its independent accountants in connection with the accounts or books of the Borrower or any Restricted Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Company or, after the Debt Assumption, BRBR, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of Company or, after the Administrative AgentDebt Assumption, copies of) any other filings made by Borrower BRBR, may file or any Subsidiary be required to file with the SEC concerning material business developments, and (iiiunder Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, whether or not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto; provided that to the extent any such documents are filed with the SEC, such documents shall be deemed delivered pursuant to this Section 6.02(c) at the time of and so long as the Company or, after the Debt Assumption, BellRing Brands, notifies the Administrative Agent (by facsimile or electronic mail) of the filing with the SEC of any such documents;
(d) promptly after the furnishing thereof, copies of) of any statement or report furnished to any holder of debt or equity securities of any Loan Party or any Restricted Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement for debt or equity security in excess of $35,000,000 and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within ten Business Days after receipt thereof by any Loan Party or any LenderRestricted Subsidiary thereof (or after the Debt Assumption, by BRBR), copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency regarding financial or other operational results of any Loan Party or any state Restricted Subsidiary thereof (or local agency responsible for environmental mattersafter the Debt Assumption, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityby BRBR);
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender Lender, through the Administrative Agent, may from time to time reasonably request;
(g) promptly following the written request to of the extent Administrative Agent, a report summarizing the confidentiality insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Restricted Subsidiaries and containing such additional information as the Administrative Agent may reasonably specify; and
(h) promptly after the assertion or occurrence thereof, notice of such information is not required any Environmental Claim against or of any noncompliance by any Loan Party or any of its Restricted Subsidiaries with any Environmental Law or Environmental Permit that could (i) Requirement of Law reasonably be expected to have a Material Adverse Effect or (ii) a contractual obligation to which cause any property described in the Borrower or any of its Subsidiaries is bound; and
Mortgages (gif any) upon request by the Administrative Agent (such request not to be made more than once in subject to any calendar year) within thirty (30) days of such requestmaterial restrictions on ownership, a certificate of a Responsible Officer of the Borrower listing (i) all applicationsoccupancy, if any, for Copyrights, Patents use or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)transferability under any Environmental Law. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) or referred to in Section 6.03(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (1) 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 11.02; or (2) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) with respect to the documents required to be delivered pursuant to Section 6.01(a) or (b) only, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests in writing the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d)with respect to any such documents, the Borrower shall notify the Administrative Agent (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information within the meaning of United States federal securities laws (“MNPI”) with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) MNPI with respect to the Borrower or its Subsidiaries, or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information” (and the Administrative Agent agrees that only Borrower Materials marked “PUBLIC” will be made available on such portion of the Platform); and (5z) the Administrative Agent and the Arranger 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 that is not designated “Public InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Bridge Facility Agreement (Post Holdings, Inc.), Bridge Facility Agreement (Bellring Brands, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2009), (i) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, the National Association of Securities Dealers, Inc., or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(iid) notice promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(and, e) upon the request of the Administrative Agent, copies ofwithin fifteen (15) days of such request, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as the Administrative Agent, or any other filings made Lender through the Administrative Agent, may reasonably specify;
(f) promptly, and in any event within five Business Days after receipt thereof by Borrower any Loan Party or any Subsidiary with thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning material business developmentsany investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all notices, requests and other documents (iiiincluding amendments, waivers and other modifications) so received under or pursuant to any Related Document or instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any other event that could materially impair the value of the interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the Administrative Agent, such information and reports regarding the Related Documents and such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
(h) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (andi) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(i) upon the request of the Administrative Agent, copies ofwithin fifteen (15) days of such request, (i) a report supplementing Schedules 8(a), 8(b) and 8(c) to the Perfection Certificate, including an identification of all owned and leased Real Property disposed of by any Loan Party or any Subsidiary thereof during such fiscal year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all Real Property acquired or leased during such fiscal year and a description of such other changes in the information that is provided included in such Schedules as may be necessary for such Schedules to be accurate and complete; and (ii) a report supplementing Schedules 14(a), 14(b), 14(c) and 14(d) to the Perfection Certificate setting forth (A) a list of registration numbers for all patents, trademarks, service marks, trade names and copyrights awarded to any Loan Party thereof during such fiscal year and (B) a list of all patent applications, trademark applications, service xxxx applications, trade name applications and copyright applications submitted by Borrower to its shareholders generallyany Loan Party or any Subsidiary thereof during such fiscal year and the status of each such application;
(ej) as soon as available, but in any event within 30 days after the end of each fiscal year of the Borrower, a report supplementing Schedules 5.08(e) and 5.13 containing a description of all changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete, each such report to be signed by a Responsible Officer of the Borrower and to be in a form reasonably satisfactory to the Administrative Agent;
(k) (i) so long as minimum Liquidity is at least $50,000,000, as soon as available, but in any event within 20 days after the end of each month, or (ii) if minimum Liquidity is less than $50,000,000, weekly or daily, in the sole discretion of the Administrative Agent, a Borrowing Base Certificate, duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower, together with such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable credit judgment;
(l) on a regular basis as required the Administrative Agent, a schedule of sales made, credits issued and cash received;
(m) upon the request of the Administrative Agent or any LenderAgent, copies within fifteen (15) days of all reports such request, agings of accounts payable (and written including information indicating the status of payments to owners and from lessors of the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations leased premises of Environmental Liabilitysuch Loan Parties);
(fn) as soon as possible after the end of each month (but in any event within fifteen (15) days after the end thereof), on a monthly basis or more frequently as the Administrative Agent may request, agings of Accounts (together with a reconciliation to the previous month’s aging and general ledger);
(o) upon the Administrative Agent’s request, (A) copies of customer statements and credit memos, remittance advices and reports, and copies of deposit slips and bank statements, (B) copies of shipping and delivery documents, (C) copies of purchase orders, invoices and delivery documents for Inventory and Equipment acquired by the Loan Parties, and (D) copies of Material Contracts entered into after the Closing Date; and
(p) such other reports as to the Collateral as the Administrative Agent or Required Lenders shall request from time to time; and
(q) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Certificates; Other Information. Deliver The Borrower shall furnish to the Administrative AgentAgent (and Agent shall thereafter make available to each Lender) by Electronic Transmission:
(a) concurrently with the delivery of the annual and quarterly financial statements referred to in Sections 8.1(a5.1(a) and (b5.1(b), (i) a duly fully and properly completed Officer’s certificate in the form of Exhibit 5.2(a) (a “Compliance Certificate signed Certificate”), certified by a Responsible Officer of the BorrowerBorrower and (ii) a reconciliation excluding the assets, liabilities, revenue, expenses and net income of Unrestricted Subsidiaries from such financial statements;
(b) within ninety promptly after the same are sent, copies of all financial statements and reports (90excluding any packages delivered solely to the board of directors (or other similar body)) which any Credit Party sends to its shareholders or other equity holders, as applicable, generally and promptly after the same are filed, copies of all financial statements and regular, periodic or special reports which such Person may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority;
(c) as soon as available and in any event no later than forty-five (45) days of after the start last day of each Fiscal Year of the Borrower, the annual business plan projections of the Borrower Credit Parties (and its their Subsidiaries) consolidated and consolidating financial performance for the forthcoming Fiscal Year on a quarterly basis and, in form and substance as agreed by with appropriate discussion, the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of principal assumptions upon which such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of themprojections are based;
(d) promptly after the same are availableupon receipt thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, any “management letter” submitted to any Credit Party by its certified public accountants and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallymanagement’s responses thereto;
(e) upon the request of the Administrative from time to time, with respect to any Property subject to a Mortgage in accordance with Section 5.13, if Agent determines that obtaining appraisals is necessary in order for Agent or any LenderLender to comply with applicable laws or regulations (including any appraisals required to comply with FIRREA), copies and at any time if an Event of Default shall have occurred and be continuing, Agent may, or may require the Borrower to, in either case at the Borrower’s expense, obtain appraisals in form and substance and from appraisers reasonably satisfactory to Agent stating the then current fair market value of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, portion of the United States Occupational Health and Safety Administration, personal property of any Credit Party or any state Restricted Subsidiary of any Credit Party and the fair market value or local agency responsible such other value as determined by Agent (for health and safety mattersexample, replacement cost for purposes of Flood Insurance) of any Real Estate of any Credit Party or any successor agencies or Governmental Authorities concerning allegations Restricted Subsidiary of Environmental Liabilityany Credit Party;
(f) concurrently with the delivery of the annual financial statements referred to in Section 5.1(a), a summary of all material insurance coverage maintained as of the date thereof by any Credit Party; and
(g) promptly, such additional information regarding the business, financial or financial, corporate affairs of the Borrower or any Subsidiaryaffairs, or compliance with the terms of the Loan Documents, perfection certificates and other information as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such (including, without limitation, information is not required and documentation reasonably requested by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or including on behalf of the Borrower hereunder (collectively, “Borrower Materials”any Lender) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to compliance with applicable “know your customer” requirements under the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11PATRIOT Act or other applicable anti-money laundering laws), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Addus HomeCare Corp), Credit Agreement
Certificates; Other Information. Deliver to the Administrative Agent:
: (a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), (or if such financial statements are delivered electronically, within two (2) Business Days of such electronic delivery) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of Parent Guarantor (which delivery may, unless the Borrower;
Administrative Agent, or 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); (b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower a General Partner by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
; (dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual proxy or financial statement or other report or communication sent to the public holders of shares of common stock in Parent Guarantor, and copies of all annual, regular, periodic and special reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) all registration statements which any other filings made by Borrower or any Subsidiary Loan Party may file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower not otherwise required to its shareholders generally;
(e) upon the request of be delivered to the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
pursuant hereto; (fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request request; and (e) to the extent the confidentiality of such Parent Guarantor Credit Agreement terminates prior to this Agreement, the information is not required by set forth in clause (ia) Requirement of Law or (ii) a contractual obligation to which in the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer last sentence of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each definition of “Material Project EBITDA Adjustments” at such term times as defined in the Security Agreement) made with same would have been delivered to the United States Copyright Office or the United States Patent and Trademark Office since the date administrative agent of the prior certificate (or, in the case Parent Guarantor Credit Agreement. provided that disclosure of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered confidential information pursuant to Section 8.1(a) or subsections (b) or and (d) of this Section 8.2(dshall be subject to (x) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) such attorney-client privilege exceptions that the Borrower shall deliver paper copies reasonably determines are necessary in order to avoid loss of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender its attorney-client privilege and (iiy) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”16188091_7 49
Appears in 2 contracts
Samples: Term Loan Agreement (Oneok Inc /New/), Term Loan Agreement (ONEOK Partners LP)
Certificates; Other Information. Deliver to the Administrative Agent (and, if requested in writing by the Administrative Agent, with copies for each Lender), in form and detail reasonably satisfactory to the Administrative Agent:
(a) [reserved];
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
Borrowing Agent, which Compliance Certificate shall state whether any Disposition was made, or any settlement or payment was received, during such Fiscal Quarter that required a prepayment pursuant to Section 2.05(b)(i) or (b) within ninety (90) days of the start of each Fiscal Year of the Borroweriii), the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter amount of such Fiscal Yearrequired prepayment and whether such prepayment was made;
(c) promptly after any reasonable written request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) ), the manager, general partner or equivalent governing body of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiary, or any audit of any of them;
(d) promptly after the same are availablewritten assertion or occurrence thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request any action or proceeding against or of the Administrative Agent, copies of) any other filings made noncompliance by Borrower any Loan Party or any Subsidiary thereof with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) or arising under any other information Environmental Law or Environmental Permit that is provided by Borrower could reasonably be expected to its shareholders generallyhave a Material Adverse Effect;
(e) upon promptly after the same are available and to the extent not publicly disclosed and then available via XXXXX on the SEC website, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of any Borrower, and copies of all annual, regular, periodic and special reports and registration statements which any Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(f) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(g) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof ,to the extent not publicly disclosed and then available via XXXXX on the SEC website;
(h) promptly following any request of therefor, information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, copies of all reports and written information to and from the United States Environmental Protection Agencyincluding, or any state or local agency responsible for environmental matterswithout limitation, the United States Occupational Health PATRIOT Act and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitythe Beneficial Ownership Regulation;
(fi) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gj) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower Borrowing Agent to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Borrowers shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower Borrowers with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, Debt Domain, ClearPar, or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower The Borrowers hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) 6.01(a), and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended August 31, 2005), (i) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrower and (ii) a duly completed Borrowing Base Certificate signed by a Responsible Officer of the Borrower (provided that beginning with the last fiscal quarter of fiscal year 2006 and the last fiscal quarter of each fiscal year thereafter, the Borrowing Base Certificate for such fiscal quarter shall be delivered within 60 days after the end of each such fiscal quarter);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilitySubsidiary thereof;
(f) as soon as available, and in any event within 20 days after the end of each fiscal month of the Borrower in which the Availability as of the end of such fiscal month is less than 35% of the Aggregate Commitments then in effect, a Borrowing Base Certificate prepared as of the end of such fiscal month; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) 6.01 or Section 8.2(d6.02 (other than Section 6.02(a)) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates and Borrowing Base Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates and Borrowing Base Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Chaparral Steel CO), Credit Agreement (Chaparral Steel CO)
Certificates; Other Information. Deliver to the Administrative Agent:Agent (which shall furnish such certificates and information to the Lenders):
(a) (i) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), (A) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrower and (B) a management discussion and analysis required for filings with the SEC and (ii) concurrently with the delivery of the financial statements referred to in Section 6.01(a), an updated Perfection Certificate;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent Agent, or any LenderLender through the Administrative Agent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, Loan Party or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the public investors in the Borrower generally, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(iiid) notice promptly after the furnishing thereof, copies of (andany statement or report furnished to any holder of loans, upon the request notes or debt securities in excess of the Administrative AgentThreshold Amount of any Loan Party pursuant to the terms of any indenture, copies of) loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon [RESERVED];
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party, copies of each notice or other correspondence received from the request SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Administrative Agent or any LenderLoan Party;
(g) not later than five Business Days after receipt thereof by any Loan Party, copies of all reports notices of default, demands, amendments, waivers and written information other modifications so received under or pursuant to and from any Material Contract, in each case only to the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, extent that the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityBorrower was required to file a report with the SEC on Form 8-K with respect thereto;
(fh) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Relevant Party with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(i) promptly, and in any event within 45 days after the end of each year, a report of all new Material Contracts executed during such year and all Material Contracts that expired or were terminated during such year, in each case only to the extent that the Borrower was required to file a report with the SEC on Form 8-K with respect thereto;
(j) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower or any SubsidiaryRelevant Party (including summaries of insurance coverage), or compliance with the terms of the Loan Documents, as the Administrative Agent Agent, or any Lender the Required Lenders through the Administrative Agent, may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gk) promptly, upon request by consummation of a Material Permitted Acquisition, deliver an updated Perfection Certificate to the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of and the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (orLenders, in substance reasonably satisfactory to the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)Administrative Agent. Documents required to be delivered pursuant to Section 8.1(a) or (b) 6.01 or Section 8.2(d) 6.02 may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower emails such documents to the Administrative Agent or the Lenders, as applicable, or posts such documents or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, upon the request of the Administrative Agent, the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers WFS will make available to the Lenders Lenders, the Swingline Lender and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerWFS, the Issuing Lender Swingline Lender, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger WFS 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no Obligation to xxxx any Borrower Materials “PUBLIC”.
Appears in 2 contracts
Samples: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)
Certificates; Other Information. Deliver The Parent Guarantor shall deliver to the Administrative Agent:Agent (to be promptly distributed to each Lender):
(ai) concurrently with the delivery of the financial statements referred to in Sections 8.1(a9(a)(i) and (b9(a)(ii), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerParent Guarantor;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dii) promptly after the same are availablesending or filing thereof, (i) copies of Form 10-Q quarterly all reports, Form 10-K annual reportsproxies or financial statements which the Parent Guarantor sends to its shareholders, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from registration statements which the United States Environmental Protection Agency, Parent Guarantor or any state of its Subsidiaries files with the SEC under Section 13 or local agency responsible for environmental matters, 15(d) of the United States Occupational Health and Safety Administration, Securities Exchange Act of 1934 or any state or local agency responsible for health national securities exchange, and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitynot otherwise required to be delivered to the Administrative Agent pursuant hereto;
(fiii) promptly, and in any event within five Business Days after receipt thereof by the Parent Guarantor or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any formal investigation by such agency regarding financial or other operational results of the Parent Guarantor or any Subsidiary thereof, subject to any confidentiality requirements imposed by such agency in respect of disclosure of such investigation or any part thereof; and
(iv) promptly, such additional information regarding the business, properties, operations or financial condition or corporate affairs of the Borrower Parent Guarantor or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a9(a)(i) or (b9(a)(ii) or Section 8.2(d9(b)(ii) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (A) on which the Parent Guarantor posts such documents, or provides a link thereto on the Parent Guarantor’s website on the Internet at the website address listed on Schedule 14; or (B) on which such documents are posted on the Parent Guarantor’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i1) the Borrower Parent Guarantor shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower Parent Guarantor to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii2) in the case of Section 8.2(d), the Borrower Parent Guarantor shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Parent Guarantor shall be required to provide paper copies of the Compliance Certificates required by Section 9(b)(i) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Parent Guarantor with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Parent Guarantor hereby acknowledges that (a) the Administrative Agent and/or any of the Arrangers will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower Parent Guarantor hereunder (collectively, the “Borrower Parent Guarantor Materials”) by posting the Borrower Parent Guarantor Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Guaranty (Georgia Pacific Corp), Guaranty (Georgia Pacific Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) not later than 60 days of after the start beginning of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year ending October 28, 2011, an annual business plan and budget of the Borrower and its SubsidiariesSubsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected among other things, pro forma financial statements for each quarter of such Fiscal Yearfiscal year;
(c) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any material statement or report furnished to any holder of (and, upon the request debt securities of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request which debt securities have a principal amount in excess of the Administrative AgentThreshold Amount) pursuant to the terms of any indenture, copies of) loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other information that is provided by Borrower to its shareholders generally;
(e) upon the request clause of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitythis Section 7.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers MLPFS will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender MLPFS and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger MLPFS 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 that is not designated marked as “Public InvestorSide Information.”” Nothing in this Section 7.02 shall modify or limit a Lender’s obligations under Section 11.07 with regard to the maintenance of the confidentiality or other treatment of information.
Appears in 2 contracts
Samples: Credit Agreement (Joy Global Inc), Credit Agreement (Joy Global Inc)
Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Administrative AgentRequired Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSECTION 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in SECTIONS 6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developmentsSecurities Exchange Act of 1934, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower not otherwise required to its shareholders generallybe delivered to Agent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any statement or report furnished to and from the United States Environmental Protection Agency, any holder of debt securities of any Loan Party or any state Subsidiary thereof pursuant to the terms of any indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 6.01 or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the Securities and Exchange Commission (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”"BORROWER MATERIALS") by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”"PLATFORM") and (b) certain of the Lenders may be “"public-side” " Lenders (i.e.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”"PUBLIC LENDER"). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders shall be clearly and conspicuously marked “"PUBLIC” " so long as Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities which, at a minimum, shall mean that the word “"PUBLIC” " shall appear prominently on the first page thereof, ; (3x) by marking Borrower Materials “"PUBLIC,” the " Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “"Public Investor,” ;" and (5z) the Administrative Agent and the Arranger 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 Investor. Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials "PUBLIC.”"
Appears in 2 contracts
Samples: Credit Agreement (Maine & Maritimes Corp), Credit Agreement (Maine & Maritimes Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) [Reserved]
(b) concurrently with the delivery of the financial statements and reports referred to in Sections 8.1(a7.1(a) and (b), a duly completed Officer’s Compliance Certificate certificate signed by a Responsible Officer of the Borrower;
Borrower (ba “Compliance Certificate”) within ninety (90i) days stating that, to the best of the start of such Responsible Officer’s knowledge, each Fiscal Year of the Borrower, the annual business plan of the Borrower and its SubsidiariesRestricted Subsidiaries during such period has observed or performed all of its covenants and other agreements contained in this Agreement and the other Loan Documents to which it is a party and that such Responsible Officer has obtained no knowledge of any Default or Event of Default, except, in form each case, as specified in such certificate and substance as agreed by (ii) if (A) delivered with the Administrative Agent prior to the Closing Date and containing projected financial statements required by Section 7.1(a) and (B) the Senior Secured Debt to EBITDA Ratio as of the last day of the immediately preceding Fiscal Year was greater than 1.50:1.00, set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for each quarter of the respective Fiscal Year covered by such Fiscal Yearfinancial statements;
(c) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other material report or material communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower has filed with the SEC (other than any request by registration statement on Form S-8 or any filing on Form 8-K) or with any national securities exchange and in any case not otherwise required to be delivered to the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of thempursuant hereto;
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, any requests or notices received by any Loan Party (other than in the ordinary course of business) and Form 8-K current reports, (ii) notice copies of (andany statement or report furnished to any holder of debt securities of any Loan Party or of any of its Restricted Subsidiaries, upon in each case, pursuant to the request terms of any Specified Debt in a principal amount greater than the Administrative Agent, copies of) Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice clause of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallythis Section 7.2;
(e) upon [Reserved];
(f) together with the request delivery of each Compliance Certificate pursuant to Section 7.2(b), copies of any Intellectual Property Security Agreement delivered to the Collateral Agent in accordance with Section 2.11(e) of the Administrative Agent or any LenderSecurity Agreement during the prior fiscal quarter;
(g) promptly after the furnishing thereof (and to the extent not otherwise provided hereunder), copies of all reports and written financial statements, forecasts, budgets or other similar information of Holdings furnished by Holdings to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, holders of the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityHoldings Notes;
(fh) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and
(i) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(aSections 7.1(a) or (b) or Section 8.2(d) 7.2 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 in accordance with Section 12.1(bSchedule A (or such other website address as the Borrower may specify by written notice to the Administrative Agent from time to time); or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon request the Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for the timely accessing of posted documents or requesting delivery to it or of paper copies of such documents from the Administrative Agent 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Certificates; Other Information. Deliver to the Administrative AgentAgent and the Lenders as contemplated by the last paragraph of this Section 6.02:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Restricted Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly all annual, regular, periodic and special reports, Form 10-K annual reports, registration statements and Form 8-K current reports, (ii) notice of (and, upon proxy statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(iiid) notice promptly after the furnishing thereof, copies of (andany statement or report furnished to any holder of debt securities of any Loan Party or any Restricted Subsidiary thereof pursuant to the terms of any indenture, upon the request loan or credit or similar agreement relating to Indebtedness with a principal amount in excess of the Administrative Agent, copies of) Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(f) not later than five Business Days after receipt thereof by any Loan Party or any Restricted Subsidiary thereof, copies of all reports notices, requests and written information other documents (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture, loan or credit or similar agreement relating to Indebtedness with a principal amount in excess of the Threshold Amount and from the United States Environmental Protection Agency, regarding or related to any breach or default by any party thereto or any state other event that could reasonably be expected to materially impair the value of the interests or local agency responsible for environmental mattersthe rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the United States Occupational Health Administrative Agent, such information and Safety Administrationreports regarding such instruments, or any state or local agency responsible for health indentures and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityloan and credit and similar agreements as the Administrative Agent may reasonably request;
(fg) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any materially adverse restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(h) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (iiB) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by telecopier, facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Refinancing Amendment (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with promptly after the delivery furnishing thereof, copies of any statement or report furnished to any holder of debt securities of the financial statements referred Borrower pursuant to the terms of any indenture, loan or credit or similar agreement (other than offering circulars issued by the Borrower in Sections 8.1(aconnection with bond offerings) and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(b)) promptly, a duly completed Officer’s Compliance Certificate signed and in any event within ten (10) Business Days after receipt thereof by a Responsible Officer the Borrower, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after (and in any request by the Administrative Agent or any Lenderevent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors within five (or the audit committee of the board of directors5) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are availableBusiness Days), (i) copies notice of Form 10any announcement by Mxxxx’x of any change in the Mxxxx’x Debt Rating or of any suspension or withdrawal of its rating of the Borrower’s senior unsecured long-Q quarterly reports, Form 10term non-K annual reports, credit enhanced debt and Form 8-K current reports, (ii) notice of (and, upon any announcement by S&P of any change in the request S&P Debt Rating or of any suspension or withdrawal of its rating of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (Borrower’s senior unsecured long-term non-credit enhanced debt; and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(fd) promptly, such additional information regarding the business, business or financial or corporate affairs of the Borrower or any SubsidiaryBorrower, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(b) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Tennessee Valley Authority), Credit Agreement (Tennessee Valley Authority)
Certificates; Other Information. Deliver to each of the Administrative AgentLenders, in form and detail reasonably satisfactory to the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSECTION 7.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default existing under SECTION 8.17 of this Agreement or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in SECTION 7.01(a) and (bSECTION 7.01(b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of each of Holdings and the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by upon the Administrative Agent or any Lenderreceipt thereof, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Holdings by independent accountants in connection with the accounts or books of the Borrower Holdings or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Holdings generally, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) any other filings made by Borrower periodic and special reports and registration statements which Holdings may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon not otherwise required to be delivered to the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyRequired Lenders pursuant hereto;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Holdings or any Subsidiary, or compliance with the terms of the Bridge Loan Documents, as the Administrative Agent or any Lender Required Lenders may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gf) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applicationspromptly (and in any event within five (5) Business Days of delivery thereof), if any, for Copyrights, Patents a copy of any notice of default or Trademarks (each such term as defined in event of default that is delivered to the Security Agreement) made with the United States Copyright Office Agent or the United States Patent lenders under the Senior Credit Agreement by any Loan Party, (ii) promptly (and Trademark Office since in any event within five (5) Business Days of receipt thereof), a copy of any notice of default or event of default that is delivered to any Loan Party by the date Agent or any lender under the Senior Credit Agreement or (iii) promptly (and in any event within 5 Business Days of receipt thereof) a copy of any notice of any 42 acceleration that is delivered to any Loan Party by the prior certificate Agent or any lender under the Senior Credit Agreement under the Senior Credit Documents. The Lenders agree that any notice of default, event of default or acceleration referenced in subsection (or, in the case of the first such certificate, the Closing Datef)(i), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in above may be provided by the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date Agent on behalf of the prior certificate (or, in the case of the first such certificate, the Closing Date)Borrower and Holdings. Documents required to be delivered pursuant to Section 8.1(aSECTION 7.01(a), SECTION 7.01(b) or (bSECTION 7.02(d) or Section 8.2(dto the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b)and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings' website on the Internet at the website address listed on SCHEDULE 12.08; provided or (ii) on which such documents are posted on Holdings' behalf on another relevant website, if any, to which each Lender has access (whether a commercial, third-party website or whether sponsored by the Required Lenders) or attached to an email sent to Lenders' email addresses; PROVIDED that: (i) the Borrower Holdings shall deliver paper copies of such documents to the Administrative Agent Required Lenders or any Lender that requests the Borrower Holdings to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender Required Lenders and (ii) in the case of Section 8.2(d), the Borrower Holdings shall notify (which may be by facsimile or electronic mail) the Administrative Agent each Lender of the posting of any such documents and provide to the Administrative Agent Lenders by electronic mail electronic versions (i.e.I.E., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to aboveNotwithstanding anything contained herein, in every instance Holdings and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed required to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion provide paper copies of the Platform designated “Public Investor,” and (5Compliance Certificates required by SECTION 7.02(b) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion each of the Platform not designated “Public InvestorLenders.”
Appears in 2 contracts
Samples: Bridge Loan Agreement (Digitalnet Holdings Inc), Bridge Loan Agreement (Digitalnet Holdings Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent (with sufficient copies for each Lender), in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerCompany;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, reports or management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Company by independent accountants in connection with the accounts or books of the Borrower Company or any Subsidiary, or any audit of any of them;
(c) promptly after the same become publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any statement or report furnished to any holder of (and, upon the request debt securities of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generally;clause of this Section 6.02; and
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Company shall deliver paper copies of such documents to the Administrative Agent (with sufficient copies for any requesting Lender) for the Administrative Agent or any Lender that requests the Borrower Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Company shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information Information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to any of the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the ”, each Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the such Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” Side Information”; and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information”. Notwithstanding the foregoing, no Borrower shall be under any obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Towers Watson & Co.), Credit Agreement (Towers Watson Delaware Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal year ending December 31, 2019), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerHoldings;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Holdings, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) any other filings made by Borrower periodic and special reports and registration statements which Holdings may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(iiid) notice promptly after the furnishing thereof, copies of (andany statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, upon the request loan or credit or similar agreement, in each case, with respect to Indebtedness for borrowed money in excess of the Administrative Agent, copies of) Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon within 30 days after the request end of each fiscal year of Holdings, current certificates of property and liability insurance, naming the Administrative Agent, on behalf of the Administrative Agent Lenders, as an additional insured or any Lenderloss payee, copies as the case may be, under all insurance policies maintained with respect to the assets and properties of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityLoan Parties that constitutes Collateral;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly after the assertion or occurrence thereof, notice of any action or proceeding against any Loan Party or any of its Subsidiaries of any liability under Environmental Law or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(h) within 90 days after the end of each fiscal year of Holdings (commencing with the fiscal year ended December 31, 2020), (i) a report supplementing Schedules 5.08(b) and 5.08(c), including an identification of all owned and leased real property disposed of by any Loan Party or any Subsidiary thereof during such fiscal year, a list and description (including the street address, state, record owner, and, in the case of leases of property, lessee thereof) of all real property acquired or leased during such fiscal year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete; (ii) a report supplementing Schedule 5.17, setting forth (A) a list of registration numbers for all patents, trademarks, service marks and copyrights awarded by the United States Copyright Office or the United States Patent and Trademark Office to any Loan Party or any Subsidiary thereof during such fiscal year and (B) a list of all patent applications, trademark applications, service xxxx applications and copyright applications submitted by any Loan Party or any Subsidiary thereof to the United States Copyright Office or the United States Patent and Trademark Office during such fiscal year and the status of each such application; and (iii) a report supplementing Schedules 5.08(d) and 5.13 containing a description of all changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete; and
(i) promptly, (A) to the extent permitted by (i) the confidentiality provisions of any agreement applicable to any Loan Party or any Subsidiary thereof, or (ii) any applicable attorney-client privilege, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such and (B) information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request and documentation reasonably requested by the Administrative Agent (such request not to be made more than once in or any calendar year) within thirty (30) days Lender for purposes of such requestcompliance with applicable “know your customer” and anti-money laundering rules and regulations, a certificate of a Responsible Officer of including the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in Act and the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)Beneficial Ownership Regulation. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Lead Borrower posts such documents, or provides a link thereto on the Lead Borrower’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Lead Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Lead Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Lead Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Borrowers or its their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At The Borrowers hereby agree that so long as the Borrowers are the issuers of any time after the making of an Incremental Term Loan pursuant to Section 5.13 outstanding debt or upon notice by the Administrative Agent to the Borrower equity securities that are registered or is actively contemplating issuing any Lender is a Public Lender, the Borrower hereby agrees that (1) such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Novanta Inc), Credit Agreement (Novanta Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default in respect of Section 8.11 or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (bc), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of Borrower Representative on behalf of all the BorrowerBorrowers;
(bc) within ninety (90) not later than 90 days of after the start end of each Fiscal Year fiscal year of TRM, beginning with the Borrowerfiscal year ending December 31, the 2006, (i) an annual business plan and budget of the Borrower TRM and its SubsidiariesSubsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected among other things, pro forma financial statements for each quarter of the next fiscal year and a budget for each month of such Fiscal Year;year detailing key business drivers and assumptions, and (ii) an Excess Cash Flow Certificate in substantially the form of Exhibit 7.02(c) hereto.
(d) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (c), a certificate of a Responsible Officer of Borrower Representative containing information regarding the amount of all Dispositions (other than Permitted Transfers), Involuntary Dispositions, Equity Issuances, Debt Issuances and Acquisitions that occurred during the period covered by such financial statements with respect to any Loan Party.
(e) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower TRM by independent accountants in connection with the accounts or books of the Borrower TRM or any Subsidiary, or any audit of any of them;
(df) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any statement or report furnished to any holder of (and, upon the request debt securities of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 7.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 7.02;
(eg) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilitySubsidiary thereof;
(fh) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any SubsidiaryLoan Party, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gi) upon request by concurrently with the Administrative Agent delivery of the financial statements referred to in Sections 7.01(a) and (such request not to be made more than once in any calendar year) within thirty (30) days of such requestb), a certificate of a Responsible Officer of the Borrower Representative (i) listing (iA) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)) by or behalf of any Loan Party, (iiB) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date) with respect to any Loan Party, and (C) all Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into by the United States Copyright Office any Borrower or the United States Patent and Trademark Office received Subsidiary since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iiiii) all material Trademark Licensesattaching the insurance binder or other evidence of insurance for any insurance coverage of each Borrower or any Subsidiary that was renewed, Copyright Licenses and Patent Licenses (each replaced or modified during the period covered by such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)financial statements. Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which TRM posts such documents, or provides a link thereto on TRM’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on TRM’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower TRM shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower TRM to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower TRM shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance TRM shall be required to provide paper copies of the Compliance Certificates required by Section 7.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Representative with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (TRM Corp), Second Lien Loan Agreement (TRM Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.1(a) and (b), (beginning with the fiscal quarter ending March 31, 2006), a duly completed Officer’s Compliance Certificate signed by a Responsible an Authorized Officer of Ventas (i) setting forth computations in reasonable detail satisfactory to the BorrowerAdministrative Agent demonstrating compliance with the financial covenants contained herein, (ii) certifying that to such officer’s knowledge, after due inquiry, no Default or Event of Default exists as of the date thereof (or the nature and extent thereof and proposed actions with respect thereto) and (iii) including a summary of all material changes in GAAP and in the consistent application thereof, the effect on the financial covenants resulting therefrom, and a reconciliation between calculation of the financial covenants (and determination of the applicable pricing level under the definition of “Applicable Percentage”) before and after giving effect to such changes;
(b) within ninety (90) days as soon as available, but in any event simultaneously with the delivery of the start statements referred to in subsection (a) of Section 6.1 for each Fiscal Year fiscal year of Ventas, financial projections on an annual basis for the Borrower, coming fiscal year prepared by management Ventas for the annual business plan of the Borrower and its SubsidiariesConsolidated Group, in form and substance as agreed by reasonably satisfactory to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter Agent; provided that such projections shall be required no more than once per fiscal year of such Fiscal YearVentas;
(c) simultaneously with the delivery of the statements referred to in subsections (a) and (b) of Section 6.1, a Borrowing Base Certificate duly completed and executed by an Authorized Officer of Ventas;
(d) promptly after any request by the Administrative Agent or any Lendertheir becoming available, copies of any detailed audit reports, management letters or recommendations submitted to the board Board of directors Directors (or the audit committee of the board Board of directorsDirectors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements that the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower not otherwise required to its shareholders generally;
(e) upon the request of be delivered to the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitypursuant hereto;
(f) promptly, and in any event within five Business Days after receipt thereof by any Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency regarding financial or other operational results of any Credit Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Credit Party or any SubsidiarySubsidiary of a Credit Party, or compliance with the terms of the Loan Fundamental Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which without requiring the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (to incur unreasonable costs to gather such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Dateinformation). Documents required to be delivered pursuant to Section 8.1(a6.1(a) or (b) or Section 8.2(d6.2(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which Ventas posts such documents, or provides a link thereto on Ventas’ website on the Internet at the website address listed on Schedule 12.2; or (ii) on which such documents are posted on Ventas’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (iiB) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.2(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Credit Parties hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders Bank materials and/or information provided by or on behalf of the Borrower Credit Parties hereunder (collectively, the “Borrower Credit Party Materials”) by posting the Borrower Credit Party Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower Credit Parties or its their securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower The Credit Parties hereby agrees agree that (1) it will use commercially reasonable efforts to identify that portion of the Borrower all Credit Party Materials that may be distributed do not contain material non-public information with respect to the Credit Parties that are to be made available to Public Lenders, (2) all such Borrower Materials Lenders 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, ); (32) by marking Borrower the Credit Party Materials “PUBLIC,” the Borrower Credit Parties shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Agent and the Lenders to treat such Borrower Credit Party Materials as either publicly available information or not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Credit Parties or its their securities for purposes of United States Federal federal and state securities laws laws; (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (43) all Borrower Credit Party Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” ”; and (54) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Credit Party Materials that are not marked designated “PUBLIC” as being suitable only for posting on a portion of the Platform not designated marked as “Public InvestorPublic”. The Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders shall take reasonable steps to preserve the confidentiality of all such non-public Credit Party Materials in accordance with the provisions of this Section 6.2.”
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Ventas Inc), Credit and Guaranty Agreement (Ventas Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerCompany together with a reconciliation of the financial condition and financial results (including balance sheet and income statement items) of the Company and its Consolidated Subsidiaries, on the one hand, and the Company and its Subsidiaries (including balance sheet and income statement items), on the other hand;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Company by independent accountants in connection with the accounts or books of the Borrower Company or any Consolidated Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Company, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower Company may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any statement or report furnished to any holder of debt securities of any Loan Party or any Consolidated Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Consolidated Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(f) promptly following any request of therefor, provide information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, copies of all reports and written information to and from the United States Environmental Protection Agencyincluding, or any state or local agency responsible for environmental matterswithout limitation, the United States Occupational Health PATRIOT Act and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;the Beneficial Ownership Regulation; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Company or any SubsidiaryConsolidated Subsidiary (including projections), or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Company shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, ClearPar or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to any of the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”” The Administrative Agent and the Arrangers acknowledge that material non-public information with respect to the Company and its Consolidated Subsidiaries is highly confidential and agree to take commercially reasonable steps to protect such information from public disclosure. In the event of the inadvertent public disclosure of any such information by the Administrative Agent or the Arrangers, the Administrative Agent or the Arrangers, as applicable, shall promptly notify the Company. The Company acknowledges and agrees that the DQ List shall be deemed suitable for posting and may be posted by the Administrative Agent and/or the Arrangers on the Platform, including the portion of the Platform that is designated for “public side” Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Stericycle Inc), Credit Agreement (Stericycle Inc)
Certificates; Other Information. Deliver to the Administrative Agent for the Administrative Agent to deliver to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default under Section 8.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(bc) within ninety at least thirty (9030) days of prior to the start end of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2010, an annual business plan budget of the Borrower Loan Parties and its Subsidiariestheir Subsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected among other things, financial statements information for each quarter of such Fiscal Yearthe next fiscal year;
(cd) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a certificate of a Responsible Officer of the Borrower containing information regarding the amount of all Dispositions, Debt Issuances, Extraordinary Receipts and Acquisitions that occurred during the period covered by such financial statements;
(i) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower a Loan Party by independent accountants in connection with the accounts or books of the Borrower such Loan Party or any Subsidiary, or any audit of any of them; and (ii) promptly after the furnishing thereof, copies of any notice received by a Loan Party or any Subsidiary that such Loan Party or Subsidiary is in default under any Material Agreement or the Colal-Pred License Agreement, which copies are not otherwise required to be furnished to the Administrative Agent pursuant to Section 7.01 or any other clause of this Section 7.02;
(df) promptly after the same are availableavailable (but in any event not later than ten (10) Business Days after delivery), (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement sent to the stockholders of the Borrower (and, if the Reorganization has occurred, the stockholders of Delaware Parent and Form 8-K current reportsDelaware Opco) and copies of all annual, regular, periodic and special reports and registration statements which the Borrower, Delaware Opco or Delaware Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, or sent to a holder of any Indebtedness owed by a Loan Party or any Subsidiary in its capacity as such a holder and not otherwise required to be delivered to the Administrative Agent pursuant hereto and (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities authorities concerning allegations of Environmental Liabilityenvironmental, health or safety matters;
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower a Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gh) upon request by concurrently with the Administrative Agent (such request not delivery of the financial statements referred to be made more than once in any calendar year) within thirty (30) days of such requestSection 7.01(a), a certificate of a Responsible Officer of the Borrower (i) listing (iA) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (iiB) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by received since the United States date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (C) all Trademark Licenses, Copyright Office Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date) and (D) each material Copyright, Trademark and Patent (each such term as defined in the Security Agreement) that has expired or the United States Patent and Trademark Office received become unenforceable since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iiiii) all material Trademark Licensesattaching the insurance binder or other evidence of insurance for any insurance coverage of a Loan Party or any Subsidiary that was renewed, Copyright Licenses and Patent Licenses (each replaced or modified during the period covered by such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)financial statements. Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (iiB) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 7.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent, the Syndication Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerSyndication Agent, the Issuing Lender Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute InformationInformation (as defined in Section 11.07), they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,;” and (5z) the Administrative Agent, the Syndication Agent and the Arranger 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 marked as “Public Investor.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC”.
Appears in 2 contracts
Samples: Credit Agreement (Prometheus Laboratories Inc), Credit Agreement (Prometheus Laboratories Inc)
Certificates; Other Information. Deliver The Company shall furnish to the Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSECTION 7.01(a), a certificate of the Independent Auditor stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred to in SECTIONS 7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed executed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal YearOfficer;
(c) promptly after any request by the Administrative Agent or any Lenderpromptly, copies of all financial statements and reports that the Company sends to its shareholders, and copies of all financial statements and regular, periodical or special reports (including Forms 10K, 10Q and 8K) that the Company or any detailed audit reportsSubsidiary may make to, management letters or recommendations submitted to file with, the board SEC and copies of directors (all registration statements and annual, quarterly, monthly or other regular reports which the audit committee Company or any of the board of directors) of the Borrower by independent accountants in connection its Subsidiaries files with the accounts or books of the Borrower NAIC or any Subsidiaryinsurance commission or department or analogous Governmental Authority (including without limitation, any filing made by the Company or any audit of Subsidiary pursuant to any of theminsurance holding company act or related rules or regulations), but excluding routine or non-material filings with the NAIC, any insurance commissioner or department or analogous Governmental Authority;
(d) promptly after the same are as soon as available, (i) copies but in any event not later than the 30th day prior to the end of Form 10-Q quarterly reportseach fiscal year, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request a copy of the Administrative Agentplan and forecast (including a projected consolidated balance sheet, copies ofincome statement and cash flow statement by business services and insurance segments) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to Company and its shareholders generallySubsidiaries for the next fiscal year;
(e) upon Promptly and in any event within ten days after (i) learning thereof, notification of any changes after the request date hereof in the rating given by A.M. Best & Co. in respect of the Administrative Agent or any LenderInsurance Subsidiary and (ii) receipt thereof, copies of all reports and written information any ratings analysis by A.M. Best & Co. relating to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Insurance Subsidiary; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Company or any Subsidiary, or compliance with the terms of the Loan Documents, Subsidiary as the Administrative Agent or Agent, at the request of any Lender Lender, may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Century Business Services Inc), Credit Agreement (Century Business Services Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) concurrently with no later than five Business Days after the delivery of the each set of consolidated financial statements referred to in Sections 8.1(aSection 6.01(a), a certificate of the Borrower’s independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default under Section 7.09 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) no later than five Business Days after the delivery of each set of consolidated financial statements referred to in Section 6.01(a) and 6.01(b) (bcommencing with the first fiscal quarter ending September 30, 2008), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(bc) within ninety (90) days of promptly after the start same are publicly available, copies of each Fiscal Year annual report, proxy or financial statement sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements (other than the annual business plan of exhibits thereto and any registration statements on Form S-8 or its equivalent) which the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lenderfiles, copies of any detailed audit reportsreport, management letters filing or recommendations submitted to communication with the board of directors (SEC under Section 13 or the audit committee of the board of directors15(d) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary1934 Act, or with any audit of Governmental Authority that may be substituted therefor, or with any of themnational securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any notices of (and, upon the request default or acceleration received by any Loan Party or notices of default or acceleration furnished by any Loan Party to any holder of debt securities of any of the Administrative Agent, copies ofRestricted Companies pursuant to the terms of any documentation governing any Indebtedness (other than Indebtedness hereunder and Indebtedness owed by one Restricted Company to another Restricted Company) any other filings made by Borrower or any Subsidiary with in a principal amount greater than the SEC concerning material business developments, Threshold Amount and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyLenders;
(e) upon promptly after the request receipt thereof by a Specified Responsible Officer of the Administrative Agent or any LenderBorrower, copies of all reports and written information each notice or other correspondence received from any Governmental Authority concerning any material investigation or other material inquiry regarding any material violation of applicable Law by any Restricted Company which would reasonably be expected to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityhave a Material Adverse Effect;
(f) promptlytogether with the delivery of each Compliance Certificate pursuant to Section 6.02(b), (i) a report identifying all Material Real Property disposed of by any Loan Party or any of its Restricted Subsidiaries since the delivery of the last supplements and a list and description of all Material Real Property acquired since the delivery of the last supplements (including the street address (if available), county or other relevant jurisdiction, state and the record owner), (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (iii) a list of each Subsidiary that is a Regulated Subsidiary as of the date of delivery of such Compliance Certificate that was not identified as such either in Schedule 5.11 to this Agreement or in any Compliance Certificate previously delivered pursuant to this clause (f); and
(g) promptly after any request therefor, such additional information regarding the business, legal, financial or corporate affairs of the Borrower or any SubsidiaryRestricted Company, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band, 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 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on SyndTrak or other relevant website, to which each Lender and the Administrative Agent are granted access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mailmail or by an automated electronic alert of a posting) the Administrative Agent of the posting of any such documents and provide which notice may be included in the certificate delivered pursuant to Section 6.02(b). Except for such Compliance Certificates, 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (aA) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower collectively,“Borrower Materials”” ) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”” ) and (bB) certain of the Lenders may 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”” ). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (32) by marking Borrower Materials “PUBLIC,” ”, the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as either publicly available information or not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws laws; (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (43) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” ”; and (54) the Administrative Agent and the Arranger 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 Investor”.”
Appears in 2 contracts
Samples: Credit Agreement (Lender Processing Services, Inc.), Credit Agreement (Lender Processing Services, Inc.)
Certificates; Other Information. Deliver The Borrower shall furnish to the Administrative Agent, for further distribution to each Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSection 6.01(a) and (bSection 6.01(b), a duly completed Officer’s Compliance Certificate signed executed by a Responsible Officer of the BorrowerBCR Holdings whose financial statements are being delivered;
(b) within ninety (90) days promptly upon receipt thereof, copies of all final reports submitted to the Borrower or any of its Subsidiaries by independent public accountants in connection with each annual, interim or special audit of the start of each Fiscal Year of the Borrower, the annual business plan financial statements of the Borrower and or any of its Subsidiaries, in form and substance as agreed Subsidiaries made by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearaccountants;
(c) promptly after any request by the Administrative Agent or any Lenderpromptly, copies of all Forms 10-K and 10-Q that the Borrower or any detailed audit Subsidiary may file with the SEC, all financial statements and reports that the Borrower send to their shareholders and copies of all other financial statements and regular, periodic or special reports (including Form 8-K) that the Borrower or any Subsidiary may make to, or file with, the SEC;
(d) Reserved;
(e) promptly and in any event within three Business Days after learning thereof, notification of any changes after the date hereof in any rating given by S&P, Fitch or A.M. Best in respect of the Borrower, any of its Subsidiaries or any of their Indebtedness or securities;
(f) promptly upon their becoming available, copies of (i) all financial statements, reports, management letters notices and proxy statements sent or recommendations submitted made available generally by the Borrower to the board of directors (its security holders acting in such capacity or the audit committee of the board of directors) by any Subsidiary of the Borrower to its equity holders, bondholders or holders of any other of its securities acting in such capacity or by independent accountants in connection any Subsidiary of the Borrower to its security holders other than Parent, the Borrower or another Subsidiary of Parent or the Borrower, (ii) all regular and periodic reports and all registration statements and prospectuses, if any, filed by the Borrower or any of its Subsidiaries with any securities exchange or with the accounts Securities and Exchange Commission or books any other Governmental Authority and (iii) all press releases and other statements made available generally by the Borrower or any of its Subsidiaries to the public concerning material developments in the business of the Borrower or any Subsidiary, or any audit of any of them;its Subsidiaries; and
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the any Loan DocumentsDocument, as the Administrative Agent Agent, for itself or at the request of any Lender Lender, may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) 6.01, this Section 6.02 or Section 8.2(d) 6.03 may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower shall deliver paper copies of post such documents or provide a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given whether sponsored by the Administrative Agent Agent); or (iii) on which such Lender and (ii) in the case of Section 8.2(d)documents are made publicly available at xxx.xxx.xxx. Except for Compliance Certificates, the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower or its Subsidiaries with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Each of the Credit Parties hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders information and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder projections (collectively, “Borrower Materials”) to the Lenders by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar secure electronic system (the “Platform”) and (b) certain of the Lenders may be “public-public side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) MNPI (each, a “Public Lender”). At any time after Each of Parent and the making of an Incremental Term Loan pursuant Borrower shall clearly designate as such all Borrower Materials provided to Section 5.13 or upon notice by the Administrative Agent to by or on behalf of Parent or the Borrower that any Lender which is a suitable to make available to Public Lender, Lenders. If Parent or the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the has not indicated whether Borrower Materials that may cannot be distributed to the Public Lenders, (2) all the Administrative Agent reserves the right to post such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean Information solely on that the word “PUBLIC” shall appear prominently on the first page thereof, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “for non-Public Investor,” and (5) the Administrative Agent and the Arranger 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 InvestorLenders.”
Appears in 2 contracts
Samples: Credit Agreement (Blue Capital Reinsurance Holdings Ltd.), Credit Agreement (Montpelier Re Holdings LTD)
Certificates; Other Information. Deliver to the Administrative AgentAgent (for further distribution to the Lenders), in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) within 45 days after the end of each fiscal quarter, a Borrowing Base Certificate as of the last day of such fiscal quarter;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b)) (commencing with the fiscal quarter ending August 31, 2018) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days Borrower which shall include, solely with respect to the delivery of the start of each Fiscal Year financial statements referred to in Section 6.01(a), such supplements to Schedules 5.13(a) and 5.17, as are necessary such that, as supplemented, such Schedules would be accurate and complete as of the Borrowerdate of such Compliance Certificate delivered in connection therewith (which delivery may, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by unless the Administrative Agent prior Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to the Closing Date and containing projected financial statements be an original authentic counterpart thereof for each quarter of such Fiscal Yearall purposes);
(c) promptly after any request by the Administrative Agent or any LenderLender (acting through the Administrative Agent), copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to all of the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the furnishing thereof, copies of any material statement or material report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) promptly, and in any event within ten Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly following any request of therefor, information and documentation reasonably requested by the Administrative Agent or any Lender, copies Lender for purposes of all reports and written information to and from compliance with applicable “know your customer” requirements under the United States Environmental Protection Agency, or any state or local agency responsible for environmental mattersPATRIOT Act, the United States Occupational Health and Safety Administration, Beneficial Ownership Regulation or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityother applicable anti-money laundering laws;
(fh) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by request;
(i) Requirement upon closing of Law any offering of Term Debt which affects the Borrowing Base, upon a pledge of assets permitted pursuant to Section 7.01, or (ii) a contractual obligation to which at the Borrower’s sole discretion upon the acquisition of assets by the Borrower or any of its Subsidiaries is boundoutside of the ordinary course of business (but otherwise permitted hereunder), an updated Borrowing Base Certificate which incorporates the acquired or pledged assets to reflect such assets on a pro-forma basis; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar yearj) within thirty (30) days after closing of such requestany offering of Term Debt, a certificate of signed by a Responsible Officer which confirms that (i) such offering did not cause an Event of Default, and (ii) the documentation associated with such offering, a copy of which shall be attached to the certificate, does not impose a limitation on the ability of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in its Subsidiaries to make Restricted Payments to the Security Agreement) made with the United States Copyright Office Borrower or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)its Subsidiaries. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger and any Affiliate of the Administrative Agent or the Arranger 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 that is not designated as “Public InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall not be under any obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate in form of Exhibit C signed by a Responsible Officer of the BorrowerBorrower and a Responsible Officer of the MLP;
(b) within ninety (90) days promptly after the same are available, copies of each annual report, proxy or financial statement or other report or written communication sent to the equity owners of the start MLP, and copies of each Fiscal Year all annual, regular, periodic and special reports and registration statements which the MLP may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the BorrowerSecurities Exchange Act of 1934, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) promptly after execution thereof, copies of Material Agreements and any request by material amendment thereto;
(d) no later than ten (10) days after any Company’s receipt of any Net Cash Proceeds resulting from a Triggering Sale, a Triggering Sale Certificate relating to such Triggering Sale;
(e) no later than ten (10) days after any Company’s receipt of any monies resulting from a Purchase Price Decrease, a Purchase Price Adjustment Certificate relating to such Purchase Price Decrease; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party as the Administrative Agent or Agent, at the request of any Lender, may from time to time reasonably request, which information may include copies of any detailed audit reports, if any, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Markwest Hydrocarbon Inc), Credit Agreement (Markwest Energy Partners L P)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(bc) within ninety (90) days of promptly after the start same are available, copies of each Fiscal Year annual report, proxy or financial statement or other report or communication sent to the equityholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the annual business plan Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Borrower Securities Exchange Act of 1934, and its Subsidiaries, in form and substance as agreed by not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(cd) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports any statement or report furnished to any holder of debt securities of Borrower pursuant to the terms of any indenture, loan or credit or similar agreement and written information not otherwise required to and from be furnished to the United States Environmental Protection Agency, Lenders pursuant to Section 6.01 or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by the Borrower, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Borrower;
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any SubsidiaryBorrower, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gh) upon request by concurrently with the Administrative Agent delivery of the financial statements referred to in Sections 6.01(a) and (such request not to be made more than once in any calendar year) within thirty (30) days of such requestb), a certificate of a Responsible Officer of the Borrower listing (iA) all applicationsapplications by the Borrower, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (iiB) all issuances of registrations or letters on existing applications by the Borrower for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iiiC) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into by the Borrower since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request for deliverydelivery by a Lender, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the delivering such Borrower Materials (whether electronically, posting such Borrower materials on SyndTrak Online or another similar an electronic system (the “Platform”or otherwise) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities) (each, . Any Lender which desires to be a “Public Lender”). At any time after Lender shall be required to deliver written notice to the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by Borrower and the Administrative Agent of such Lender’s election (and until the Administrative Agent provides written confirmation to the Borrower that any such Lender is of receipt of such election, such Lender shall not be considered a Public Lender, the Lender for purposes hereunder). The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,to all Lenders;” and (5z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on distribution to Lenders who have not identified themselves as a portion of Public Lender in accordance with the Platform not designated terms hereof. Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any borrower Materials “Public InvestorPUBLIC”.”
Appears in 2 contracts
Samples: Credit Agreement (Voya PRIME RATE TRUST), Credit Agreement (Voya PRIME RATE TRUST)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with within ninety (90) days after the delivery end of each fiscal year of the financial statements referred to in Sections 8.1(aBorrower and within forty-five (45) and (b)days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower, which certificate shall include information regarding the amount of all Dispositions, Involuntary Dispositions, Debt Issuances, Extraordinary Receipts and Acquisitions that occurred during the fiscal quarter ending as of the end of such fiscal period;
(b) within ninety sixty (9060) days of the start after end of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2013, an annual business plan budget of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and Subsidiaries containing projected financial statements for each quarter information, in substantially the same scope and form as provided to the Borrower’s Board of such Fiscal YearDirectors;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request any statement or report furnished to any holder of the Administrative Agent, copies of) any other filings made by Borrower Convertible Notes or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallySubordinated Indebtedness;
(e) upon the request of the Administrative Agent within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental mattersSubsidiary thereof, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations occurrence of Environmental Liabilitywhich in the reasonable opinion of the Borrower must be disclosed in a public filing with the SEC;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(g) upon request by the Administrative Agent within ninety (such request not to be made more than once in any calendar year) within thirty (3090) days after the end of such requesteach fiscal year of the Borrower and within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, a certificate of a Responsible Officer of the Borrower listing (i) all applicationsapplications by any Loan Party in the United States Copyright Office or United States Patent and Trademark Office, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), ) and (ii) all issuances of registrations by any Loan Party in the United States Copyright Office or letters on existing applications United States Patent and Trademark Office, if any, for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower shall deliver paper copies of posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given whether sponsored by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(dAgent); provided, that: the Borrower shall notify the Administrative Agent (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request for deliverydelivery by a Lender, and each Lender shall be solely responsible for 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 MLPF&S may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender MLPF&S and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger MLPF&S 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 that is not designated as “Public InvestorSide Information.”
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent and the Lenders as contemplated by the penultimate paragraph of this Section 6.02:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower[reserved];
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year[reserved];
(c) promptly after the same are available, copies of all annual, regular, periodic and special reports, registration statements and proxy statements which the Borrower may file or be required to file with the SEC under Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, or with any request by national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of thempursuant hereto;
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any statement or report furnished to any holder of (and, upon the request debt securities of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent [reserved];
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderRestricted Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all reports notices, requests and written information other documents (including amendments, waivers and other modifications) so received under or pursuant to and from the United States Environmental Protection Agencyany instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any state other event that could materially impair the value of the interests or local agency responsible for environmental mattersthe rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the United States Occupational Health Administrative Agent, such information and Safety Administrationreports regarding such instruments, or any state or local agency responsible for health indentures and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityloan and credit and similar agreements as the Administrative Agent may reasonably request;
(fh) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Restricted Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(i) [reserved];
(j) [reserved]; and
(k) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Lead Arranger will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) either by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) or by delivery or electronic communication to the applicable Lenders and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securitiessecurities except as contemplated below) (each, a “Public Public-Side Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (1x) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed to posted on the Public Lenders, (2) all such Borrower Materials Platform shall be clearly and conspicuously marked “PUBLIC-SIDE” which, at a minimum, shall mean that the word words “PUBLIC-SIDE” shall appear prominently on the first page thereof, ; (3y) by marking Borrower Materials “PUBLIC-SIDE,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Lead Arranger and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that (A) prior to the creation of a Public Market, Lenders shall treat such Borrower Materials as containing material non-public information with respect to the Borrower and its Subsidiaries (“MNPI”), and the Borrower shall be deemed to have represented to the Lenders that it expects such Borrower Materials will cease to be MNPI at the time of creation of a Public Market and (B) to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” ; and (5z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC-SIDE” as being suitable contemplated above shall be treated as containing MNPI, shall not be posted on the Platform and shall be available to Lenders only upon request therefor (which request may apply generally to all such Borrower Materials). Any such request shall constitute a confirmation from the applicable Lender that it has compliance procedures for posting dealing with such MNPI, and that it will use and maintain such information only in compliance with those procedures, its contractual obligations and applicable law, including federal and state securities laws. Each Public-Side Lender shall designate individuals or advisors authorized to act on a portion behalf of the Platform Public-Side Lender to receive Borrower Materials not designated as “Public InvestorPUBLIC-SIDE” pursuant to the immediately preceding paragraph, including any notices pursuant to Section 6.03.”
Appears in 2 contracts
Samples: Credit Agreement (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery to each Lender, of the Administrative Agentfollowing, in form and detail satisfactory to Agent in its reasonable discretion and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSection 6.1(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Section 6.1(a) and (bSection 6.1(b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Borrower in the Borrower ordinary course and by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) as soon as available, but in no event later than sixty (60) days after the end of each fiscal year of Borrower, annual projections for the following two (2) fiscal years from (i) Borrower on a consolidated basis and (ii) from Guarantor on a consolidated basis;
(e) as soon as available, but in no event later than twenty five (25) days after the end of each calendar month, an Asset Coverage Ratio report, together with schedules of account receivable agings and inventory reports necessary to calculate the Asset Coverage Ratio;
(f) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Borrower, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all annual, regular, periodic and special reports and written information registration statements which Borrower may file or be required to file with the Securities and from the United States Environmental Protection Agency, Exchange Commission under Section 13 or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f15(d) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any SubsidiarySecurities Exchange Act of 1934, or compliance with the terms of the Loan Documents, as the Administrative and not otherwise required to be delivered to Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; andpursuant hereto;
(g) promptly after Borrower has notified Agent of any intention by Borrower to treat the Loans and/or Letters of Credit and related transactions as being a "reportable transaction" (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;
(h) promptly upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term additional financial information as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required Agent may request from time to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investortime.”
Appears in 2 contracts
Samples: Credit Agreement (Micros Systems Inc), Credit Agreement (Micros Systems Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent (for distribution to the Lenders), in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any reasonable request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Material Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by statement or report furnished to any holder of debt securities of the Borrower or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon promptly, and in any event within five Business Days after receipt thereof by the request of the Administrative Agent Borrower or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other material inquiry by such agency regarding financial or other operational results of the Borrower or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; andrequest.
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Biogen Idec Inc.), Loan Agreement (Biogen Idec Inc.)
Certificates; Other Information. Deliver Furnish to each Lender (or to the Administrative Agent:Agent on behalf of such Lender):
(a) concurrently with the delivery of the financial statements referred to in Sections subsection 8.1(a), a certificate of the independent certified public accountants reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred to in subsection 8.1(a) and (b), a duly completed Officer’s Compliance Certificate signed by certificate of a Responsible Officer of the Borrower;
U.S. Borrower (bi) within ninety stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (90ii) days stating, to the best of the start of each Fiscal Year of the Borrowersuch Responsible Officer's knowledge, the annual business plan of the Borrower that all such financial statements are complete and its Subsidiariescorrect in all material respects (subject, in form the case of interim statements, to normal year-end audit adjustments) and substance have been prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein (except as agreed by disclosed therein) and (iii) showing in detail the Administrative Agent prior to the Closing Date and containing projected financial calculations supporting such statements for each quarter in respect of such Fiscal Yearsubsection 9.1;
(c) promptly after any request by the Administrative Agent or any Lenderupon receipt thereof, copies of any detailed audit reports, management letters or recommendations all final reports submitted to the board of directors (or the audit committee of the board of directors) of the U.S. Borrower by independent certified public accountants in connection with each annual, interim or special audit of the accounts or books of the U.S. Borrower or made by such accountants, including, without limitation, any Subsidiary, or any audit of any of themmanagement letter commenting on the U.S. Borrower's internal controls submitted by such accountants to management in connection with their annual audit;
(d) promptly after the same are availablesent, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reportsall financial statements and reports which the U.S. Borrower sends to its public equity holders, and Form 8-K current reports, (ii) notice of (and, upon within five days after the request of the Administrative Agentsame are filed, copies of) any other filings made by of all financial statements and reports which the U.S. Borrower may make to, or file with, the Securities and Exchange Commission or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (successor or analogous Governmental Authority; and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time subject to time reasonably request to the extent the reasonable confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation requirements and confidentiality agreements to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (a party, such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term additional financial and other information as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower may from time to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investorreasonably request.”
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Lear Corp /De/), Revolving Credit and Term Loan Agreement (Lear Corp Eeds & Interiors)
Certificates; Other Information. Deliver to the Administrative AgentAgent for the Administrative Agent to deliver to each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default under Section 8.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(bc) within ninety at least thirty (9030) days of prior to the start end of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2007, an annual business plan budget of the Borrower and its SubsidiariesSubsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected among other things, financial statements information for each quarter of the next fiscal year.
(d) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a certificate of a Responsible Officer of the Borrower containing information regarding the amount of all Dispositions, Debt Issuances, Extraordinary Receipts and Acquisitions that occurred during the period covered by such Fiscal Yearfinancial statements;
(ce) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(df) promptly after the same are availableavailable (but in any event not later than ten (10) Business Days after delivery), (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, or sent to a holder of any Indebtedness owed by the Borrower or any Subsidiary in its capacity as such a holder and not otherwise required to be delivered to the Administrative Agent pursuant hereto and (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities authorities concerning allegations of Environmental Liabilityenvironmental, health or safety matters;
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gh) upon request by concurrently with the Administrative Agent (such request not delivery of the financial statements referred to be made more than once in any calendar Section 7.01(a) and Section 7.01(b) for the quarter ending June 30 of each fiscal year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower (i) listing (iA) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (iiB) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by received since the United States date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (C) all Trademark Licenses, Copyright Office Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date) and (D) each material Copyright, Trademark and Patent (each such term as defined in the Security Agreement) that has expired or the United States Patent and Trademark Office received become unenforceable since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iiiii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in attaching the Security Agreement) registered insurance binder or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date other evidence of insurance for any insurance coverage of the prior certificate (orBorrower or any Subsidiary that was renewed, in replaced or modified during the case of the first period covered by such certificate, the Closing Date)financial statements. Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; or (ii) on which such documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (iiB) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 7.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers BAS will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “the "Borrower Materials”") by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “"Platform”") and (b) certain of the Lenders (each, a "Public Lender") may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person's securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “"PUBLIC,” " the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender BAS and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute InformationInformation (as defined in Section 11.07), they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “as "Public Investor,” ;" and (5z) the Administrative Agent and the Arranger BAS 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 “marked as "Public Investor.”" Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials "PUBLIC".
Appears in 2 contracts
Samples: Credit Agreement (Prometheus Laboratories Inc), Credit Agreement (Prometheus Laboratories Inc)
Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Administrative AgentRequired Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developmentsSecurities Exchange Act of 1934, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower not otherwise required to its shareholders generallybe delivered to Agent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any statement or report furnished to and from the United States Environmental Protection Agency, any holder of debt securities of any Loan Party or any state Subsidiary thereof pursuant to the terms of any indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 6.01 or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the Securities and Exchange Commission (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) commencing with the first month following the initial funding hereunder, as soon as available, but in any event within 15 days after the end of each month, a Loan Value Certificate (which shall include, among other items, an accounts receivable aging report), as at the end of such month, duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower; and
(h) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by request.
(i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform that is designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information. Notwithstanding the foregoing, Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Greenway Medical Technologies Inc), Credit Agreement (Greenway Medical Technologies Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
Domestic Borrower (b) within ninety (90) days of the start of each Fiscal Year of the Borrowerwhich delivery may, the annual business plan of the Borrower unless Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior shall be deemed to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearbe an original authentic counterpart thereof all purposes);
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Domestic Borrower by independent accountants in connection with the accounts or books of the Domestic Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Domestic Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Domestic Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) promptly, and in any event within fifteen Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly, such additional information regarding any Foreign Pension Plans, as the Administrative Agent or any Lender, copies of all reports and written information Lender may from time to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitytime reasonably request;
(fh) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by request;
(i) Requirement promptly after the assertion or occurrence thereof, notice of Law any action or (ii) a contractual obligation to which the Borrower proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries is boundwith any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law; and
(gj) upon request by (i) as soon as available, but in any event within 45 days after the Administrative Agent (end of each fiscal year of the Borrower, a report supplementing Schedules 5.08(c), 5.08(d)(i), 5.08(d)(ii) and 5.13 containing a description of all changes in the information included in such request not Schedules as may be necessary for such Schedules to be made more than once in any calendar year) within thirty (30) days of accurate and complete, each such request, a certificate of report to be signed by a Responsible Officer of the Borrower listing (i) all applicationsand to be in a form reasonably satisfactory to the Administrative Agent, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations as soon as available, but in any event within 30 days after the establishment thereof, a report supplementing Schedule 5.12(d) setting forth each new Pension Plan, Foreign Pension Plan or letters on existing applications Multiemployer Plan for Copyrightswhich the Borrower, Patents any Subsidiary or any ERISA Affiliate could have liability as may be necessary for such Schedule to be accurate and Trademarks (complete, each such term as defined in the Security Agreement) report to be signed by the United States Copyright Office or the United States Patent and Trademark Office received since the date a Responsible Officer of the prior certificate (or, Borrower and to be in a form reasonably satisfactory to the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)Administrative Agent. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Domestic Borrower posts such documents, or provides a link thereto on the Domestic Borrower’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Domestic Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) the Domestic Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Domestic Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (iiB) in the case of Section 8.2(d), the Domestic Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Domestic Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to any of the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the such Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the such Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Diodes Inc /Del/), Credit Agreement (Diodes Inc /Del/)
Certificates; Other Information. Deliver to the Administrative Agent:Agent (for distribution to each Lender):
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ending September 30, 2017), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerParent Borrower or the REIT Guarantor, in form and detail reasonably satisfactory to the Administrative Agent, including a calculation of Unencumbered Asset Value as of the last day of the fiscal period covered by such Compliance Certificate, and a schedule of Unencumbered Properties and attaching thereto copies of any modifications, amendments or supplements to the Organization Documents of the REIT Guarantor, Intermediate Subsidiary Guarantors, if any, and either Borrower that shall have become effective during the fiscal quarter covered by such Compliance Certificate;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower REIT Guarantor by independent accountants in connection with an audit of the accounts or books of the Borrower or any Subsidiary, or any audit of any of themREIT Guarantor;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the REIT Guarantor, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements that the REIT Guarantor may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Exchange Act, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly, copies ofand in any event within five (5) any other filings made Business Days after receipt thereof by Borrower the REIT Guarantor or any Subsidiary with thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning material business developments, and (iii) notice of (and, upon the request any investigation by such agency regarding financial or other operational results of the Administrative Agent, copies of) REIT Guarantor or any other information that is provided by Borrower to its shareholders generally;Subsidiary thereof; and
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower REIT Guarantor or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the REIT Guarantor posts such documents, or provides a link thereto, on the REIT Guarantor’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the REIT Guarantor’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Parent Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Parent Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent ), which shall notify each Lender, of the posting of any such documents and and, upon 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Credit Parties hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower Credit Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, ClearPar or another a similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders have personnel that do not wish to receive material non-public information with respect to the Borrower Credit Parties or its their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At The Credit Parties hereby agree that so long as any time after Credit Party is the making issuer of an Incremental Term Loan any outstanding debt or equity securities that are registered or issued pursuant to Section 5.13 a private offering or upon notice by the Administrative Agent to the Borrower that is actively contemplating issuing any Lender is a Public Lender, the Borrower hereby agrees that such securities (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, (3x) by marking Borrower Materials “PUBLIC,” the Borrower Credit Parties shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Credit Parties or its their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), 10.07) (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” or that are marked “PRIVATE” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, the Credit Parties shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Sabra Health Care REIT, Inc.), Credit Agreement (Sabra Health Care REIT, Inc.)
Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery to each Lender, of the Administrative Agentfollowing, in form and detail satisfactory to Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(b) and (bc), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days , such Compliance Certificate to include a calculation of the start financial covenants set forth in Section 6.12 as of the last day of the fiscal quarter of Borrower most recently ended with said calculation showing each component of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearcalculation;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the shareholders of Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) notice of (andthe Securities Exchange Act of 1934, and not otherwise required to be delivered to Agent pursuant hereto, provided however, that such documents shall be deemed to be delivered to Agent hereunder upon the request filing of the Administrative Agent, copies of) any other filings made same by the Borrower or any Subsidiary with the SEC concerning material business developments, Securities and (iii) notice of (Exchange Commission via the XXXXX system; and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial condition or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Hooker Furniture Corp), Credit Agreement (Hooker Furniture Corp)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a), (b) and (bc) (commencing with the delivery of the financial statements for the month ending January 31, 2011), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of Borrower Agent setting forth, without limitation, (i) detailed calculations of the BorrowerFixed Charge Coverage Ratio for all applicable periods (irrespective of whether the financial covenant set forth in Section 7.12 is subject to being tested in accordance with the terms thereof), (ii) a monthly breakdown of Consolidated EBITDA for each month represented in the calculation of the Fixed Charge Coverage Ratio in clause (i) of this Section 6.02(a), respectively, and (iii) a list of any additions, deletions, modifications or other supplements to the information disclosed in Schedule 5.14 regarding any Domestic Subsidiaries, First Tier Foreign Subsidiaries, other Foreign Subsidiaries and Excluded Subsidiaries since the date of the last Compliance Certificate delivered hereunder (or the Closing Date in the case of the first Compliance Certificate delivered hereunder);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Agent by independent accountants in connection with the accounts or books of the any Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower Agent, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower Agent may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Exchange Act, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state Subsidiary thereof where such investigation or local the subject of such investigation or notice could be reasonably expected to result in a Material Adverse Effect, unless, in each case, such Loan Party or Subsidiary is otherwise required by the SEC (or comparable agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or in any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;applicable non-U.S. jurisdiction) to keep such information confidential; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the any Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or 6.01(a), (b) or (c) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower Agent posts such documents, or provides a link thereto on the Borrower Agent’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Agent shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower Agent to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Agent shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower Agent shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Agent with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Agent hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower Agent hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Agent or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative The Borrower Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Agent shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Agent or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor.”” Notwithstanding the foregoing, the Borrower Agent shall be under no obligation to xxxx any Borrower Materials “PUBLIC.” The Administrative Agent agrees promptly to provide copies to the Lenders of all such notices, reports and other information furnished to the Administrative Agent by the Borrower Agent pursuant to the terms of this Section 6.02 (which may be effected by posting the foregoing on Intralinks or other similar electronic system then in use hereunder).
Appears in 2 contracts
Samples: Credit Agreement (Pacer International Inc), Credit Agreement (Pacer International Inc)
Certificates; Other Information. Deliver to the Administrative Agent:Agent (which will promptly furnish such information to each Lender):
(a) [reserved];
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), ) (i) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrowerchief executive officer, the annual business plan chief financial officer, treasurer or controller of the Borrower (which delivery may be by electronic communication including fax or email and its Subsidiaries, in form and substance shall be deemed to be an original authentic counterpart thereof for all purposes); which shall contain a listing of each Unrestricted Subsidiary designated as agreed by of the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yeardate thereof;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them[reserved];
(d) promptly after the same are publicly available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports any statement or report furnished to any holder of debt securities of any Loan Party pursuant to the terms of any indenture, loan or credit or similar agreement in each case with an outstanding principal amount above the Threshold Amount and written information not otherwise required to and from be furnished to the United States Environmental Protection Agency, Lenders pursuant to Section 6.01 or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) [reserved];
(g) promptly, and in any event within five Business Days after receipt thereof by any Loan Party, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation (or possible investigation or other inquiry that the Borrower believes is reasonably likely to lead to an investigation) by such agency regarding financial or other operational results of the Borrower or any Subsidiary thereof, to the extent permitted by Law;
(h) [reserved];
(i) concurrently with the delivery of the financial statements referred to in Section 6.01(a) for each fiscal year, a report supplementing Schedule 5.17 hereto, setting forth (A) a list of registration numbers for all patents, trademarks, and copyrights of any Loan Party registered with the U.S. Patent and Trademark Office and the U.S. Copyright Office during such fiscal year and (B) a list of all patent applications, trademark applications, and copyright applications submitted by any Loan Party to the U.S. Patent and Trademark Office or the U.S. Copyright Office during such fiscal year; each such report to be signed by a Responsible Officer of the Borrower and to be in a form reasonably satisfactory to the Administrative Agent;
(j) from time to time, such additional information regarding the business, financial financial, or corporate affairs of the Borrower any Loan Party or any SubsidiaryRestricted Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, ClearPar, or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (TopBuild Corp), Credit Agreement (TopBuild Corp)
Certificates; Other Information. Deliver to the Administrative Agent (who will deliver same to each Lender), in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerParent (which delivery may, unless the Administrative Agent 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);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries or Controlled JV Subsidiaries, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Parent, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower Parent may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries or Controlled JV Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the as soon as available, and after any request of by the Administrative Agent or any LenderLender within 30 days after the end of each fiscal year of the Parent, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and Controlled JV Subsidiaries and containing such additional information as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof;
(g) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof, copies of all reports notices, requests and written information other documents (including amendments, waivers and other modifications) so received under or pursuant to and from the United States Environmental Protection Agencyany Related Document or instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any state other event that could materially impair the value of the interests or local agency responsible for environmental mattersthe rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the United States Occupational Health Administrative Agent, such information and Safety Administrationreports regarding the Related Documents and such instruments, or any state or local agency responsible for health indentures and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityloan and credit and similar agreements as the Administrative Agent may reasonably request;
(fh) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect; and
(i) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary or Controlled JV Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; andrequest.
(ga) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver Agent. Except for such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d)Compliance Certificate, the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Parent and the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Parent and the Borrower hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Parent or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public LenderParent, the Borrower or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Parent and the Borrower hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Parent and the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Parent, the Borrower or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Ashford Hospitality Prime, Inc.), Credit Agreement (Ashford Hospitality Prime, Inc.)
Certificates; Other Information. Deliver The Borrower shall deliver to the Administrative AgentAgent for each Lender, in form and detail satisfactory to the Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(asubsection 5.1(a), a certificate of its independent certified public accountants certifying such financial statements and whether in making the examination necessary therefor knowledge was obtained that the Borrower failed to comply with Section 6.10 insofar as it relates to accounting matters;
(b) concurrently with the delivery of the financial statements referred to in subsections 5.1(a), (b) and (bc), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days , and in the event of any change in generally accepted accounting principles used in the start preparation of each Fiscal Year of the Borrowersuch financial statements, the annual business plan Borrower shall also provide, if necessary for the determination of the Borrower and its Subsidiariescompliance with Section 6.10, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected a statement of reconciliation conforming such financial statements for each quarter of such Fiscal Yearto GAAP;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Credit Party by independent accountants in connection with the accounts or books of the Borrower any Credit Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) after the occurrence of a Qualifying IPO, promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of any Credit Party, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) periodic and special reports and registration statements which any other filings made by Borrower Credit Party may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and (iii) notice of (and, upon in any case not otherwise required to be delivered to the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon after the request occurrence of the Administrative Agent a Qualifying IPO, promptly and in any event within five Business Days after receipt thereof by any Credit Party or any Lenderof its Subsidiaries, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Credit Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityits Subsidiaries;
(f) promptlypromptly upon receipt thereof, copies of (i) all notices, requests and other documents received by any Credit Party or any of its Subsidiaries under or pursuant to any instrument, indenture, or loan or credit or similar agreement, in respect of Indebtedness having an aggregate principal amount in excess of the Threshold Amount regarding or related to any material breach or default, or any assertion of a material breach or default, by any party thereto, and (ii) any amendment, modification or waiver of any provision of any Related Agreement and, from time to time upon request by the Agent, such other information regarding any of the Related Agreements or any Indebtedness in excess of the Threshold Amount as the Agent may reasonably request;
(g) promptly after the assertion or occurrence thereof, notice of any assertion of Environmental Liability against or of any noncompliance by any Credit Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(h) not less frequently than annually, a report supplementing Schedules 4.8(c) and 4.8(d)(i) and (ii), and 4.13 hereto, including an identification of all owned and leased real property disposed of by any Credit Party or any of its Subsidiaries during such fiscal year, a list and description (including the street address, county or other relevant jurisdiction and state and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof and, in the case of owned real property, the purchase price thereof) of all real property acquired or leased during such fiscal year and a description of such other changes in the information included in such Schedules following the Closing Date;
(i) promptly after the receipt thereof, copies of all Revenue Agent Reports (Internal Revenue Service Form 886), or other written proposals of the Internal Revenue Service, that propose, determine or otherwise set forth positive adjustments to the federal income tax liability of the affiliated group (within the meaning of Section 1504(a)(1) of the Code) of which the Borrower is a member aggregating $500,000 or more;
(j) within 60 days after the end of each fiscal quarter, a statement with respect to each Media Contract then in effect covering transmission of programming to subscribers within the United States of America setting forth (in detail reasonably satisfactory to the Agent) the number of subscribers on which invoices with respect to such Media Contract are based;
(k) from time to time, promptly after request therefor, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Credit Party or any Subsidiaryof its Subsidiaries, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request request, including any information required pursuant to the extent Patriot Act. In addition, upon the confidentiality reasonable request of such information is not required the Agent, Borrower shall cause the participation by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer senior management of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made annual conference calls with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to discuss the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 InvestorBorrower’s financial results.”
Appears in 2 contracts
Samples: Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) (i) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSection 6.01(a) and Section 6.01(b) for a quarter during which Borrowing Availability was less than $15,000,000 for three (b)3) consecutive days, a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of UHS (which shall set forth reasonably detailed calculations demonstrating compliance with Section 7.11 and (ii) at any time on or after the Borrowertenth (10th) day prior to the last day of any fiscal quarter, the Equity Investors may deliver notice of their intent to provide UHS with Net Cash Proceeds (a “Notice of Intent to Make An Equity Infusion”) through capital contributions or the purchase of Equity Interests by one or more Equity Investors as contemplated pursuant to clause (b)(xiii) and the final proviso of the definition of “Consolidated EBITDA”; provided that the delivery of a Notice of Intent to Make An Equity Infusion shall in no way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document; provided further that from the date of receipt of such Notice of Intent to Make an Equity Infusion by the Administrative Agent until the 20th Business Day following the delivery of the Compliance Certificate, neither the Administrative Agent nor any Lender shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under Section 7.11;
(b) within ninety (90promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which any Borrower or any Restricted Subsidiary filed with the SEC under Section 13 or 15(d) days of the start Securities Exchange Act of each Fiscal Year of the Borrower1934, the annual business plan of the Borrower or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and its Subsidiaries, in form and substance as agreed by any case not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) promptly after any request by the Administrative Agent or any Lenderfurnishing thereof, copies of any detailed audit reports, management letters material requests or recommendations submitted to material notices received by any Loan Party (other than in the board ordinary course of directors (or the audit committee of the board of directorsbusiness) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiaryfrom, or material statement or material report furnished to, any audit holder of debt securities of any Loan Party or of any of themits Restricted Subsidiaries pursuant to the terms of any Junior Financing Documentation in a principal amount greater than the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;
(d) promptly after the same are availablereceipt thereof by any Loan Party or any of its Subsidiaries, (i) copies of Form 10each notice or other written correspondence received from the SEC (or comparable agency in any applicable non-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (iiUS jurisdiction) notice concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallySubsidiaries;
(e) upon the request of promptly after any Borrower has notified the Administrative Agent or of any Lenderintention by such Borrower to treat the Loans and/or Letters of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), copies a duly completed copy of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, IRS Form 8886 or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;form; and
(f) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request request. No Loan Party shall be required to provide the extent the confidentiality Administration Agent with access to patient information of such information is not required by (i) Requirement any customer or employee of Law or (ii) a contractual obligation to which the Borrower any Loan Party or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)Subsidiary thereof. Documents required to be delivered pursuant to Section 8.1(a) or (b6.01(a), Section 6.01(b), Section 6.02(b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which any Borrower posts such documents, or provides a link thereto on such Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrowers’ behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) upon the Borrower request of the Administrative Agent, the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower for further distribution to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such each Lender and (iiB) in the case of Section 8.2(d), the Borrower Borrowers shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Except for Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it of 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) [reserved];
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
REIT (b) within ninety (90) days of which delivery may, unless the start of each Fiscal Year of the BorrowerAdministrative Agent requests executed originals, the annual business plan of the Borrower be by electronic communication including fax or email and its Subsidiariesshall be deemed to be an original authentic counterpart thereof for all purposes), including a calculation, in form and substance as agreed by reasonably satisfactory to the Administrative Agent prior to Agent, of Unencumbered Asset Value as of the Closing Date and containing projected financial statements for each quarter last day of the fiscal period covered by such Fiscal YearCompliance Certificate;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower REIT or any SubsidiarySubsidiary thereof, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reports, and Form 8-K current reportsproxy or financial statement or other report or communication sent to the stockholders of the REIT, (ii) notice copies of (andeach annual report, upon proxy or financial statement or other financial report sent to the request limited partners of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice copies of (andall annual, upon regular, periodic and special reports and registration statements which the request REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any material statement or report furnished to and from the United States Environmental Protection Agency, any holder of debt securities of any Loan Party or any state Subsidiary thereof pursuant to the terms of any material indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 6.01 or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding material issues concerning financial or other operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional material information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (including at the direction of the Required Lenders) may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the REIT posts such documents, or provides a link thereto on the REIT’s website on the Internet at the website address listed on Schedule 11.02 (as such website address may be updated by the Borrower from time to time by written notice to the Administrative Agent); or (ii) on which such documents are posted on the REIT’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower REIT shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower REIT to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower REIT shall notify the Administrative Agent (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower REIT with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower any Loan Party hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower REIT or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Each Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower Party hereby agrees that (1w) it they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower each Loan Party shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Loan Parties or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Paramount Group, Inc.), Credit Agreement (Paramount Group, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with [reserved];
(b) No later than five days after the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiarieswhich may, in form and substance as agreed by unless the Administrative Agent prior or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to the Closing Date and containing projected financial statements be an original authentic counterpart thereof for each quarter of such Fiscal Yearall purposes;
(c) promptly after any request by the Administrative Agent same are available, copies of all annual, regular, periodic and special reports and registration statements which Holdings or any Lenderthe Borrower may file or be required to file, copies of any detailed audit reportsreport, management letters filing or recommendations submitted to communication with the board of directors (SEC under Section 13 or the audit committee of the board of directors15(d) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any SubsidiaryExchange Act, or with any audit of Governmental Authority that may be substituted therefor, or with any of themnational securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q any requests or notices received by any Loan Party (other than in the ordinary course of business), statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries (other than any immaterial correspondence in the ordinary course of business or any regularly required quarterly reports, Form 10-K or annual reports, certificates) pursuant to the terms of any Senior Notes Indenture or any public debt securities and Form 8-K current reports, (ii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice clause of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallythis Section 6.02;
(e) upon the request of the Administrative Agent promptly, after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilitySubsidiary thereof;
(f) [reserved];
(g) promptly upon any Loan Party obtaining knowledge of (i) the institution of any Adverse Proceeding not previously disclosed in writing by the Borrower to the Administrative Agent, or (ii) any material development in any Adverse Proceeding that, in the case of either clause (i) or (ii) could reasonably be expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of the Transactions, written notice thereof together with such other information as may be reasonably available to the Borrower to enable the Administrative Agent and its counsel to evaluate such matters;
(h) together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), a report supplementing Schedule 5.12, 5.16 and 5.08(b) hereto;
(i) [reserved]; and
(j) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request request, including without limitation, any change in the information provided in the Beneficial Ownership Certification that would result in a change to the extent the confidentiality list of beneficial owners identified in parts (c) or (d) of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)certification. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower shall deliver paper copies of posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given whether sponsored by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(dAgent); provided, that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such timely accessing posted documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (CommScope Holding Company, Inc.), Term Loan Credit Agreement (CommScope Holding Company, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to Administrative Agent and Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Reporting Officer of the BorrowerBorrower (which delivery may, unless Administrative Agent 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);
(b) within ninety (90) days concurrently with the delivery of the start financial statements referred to in Sections 7.01(a) and (b), a duly completed Borrowing Base Report signed by a Reporting Officer of each Fiscal Year of the BorrowerBorrower (which delivery may, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the unless Administrative Agent prior requests executed originals, be by electronic communication including fax or email and shall be deemed to the Closing Date and containing projected financial statements be an original authentic counterpart thereof for each quarter of such Fiscal Yearall purposes);
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, material management letters or material recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Parent by independent accountants in connection with the accounts or books of the Borrower or any SubsidiaryCompany, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Parent, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) any other filings made by periodic and special reports and registration statements which Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of the not otherwise required to be delivered to Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) promptly, and in any event within ten (10) Business Days upon reasonable request by Administrative Agent, but no more often than once each fiscal quarter, information concerning the request of the Administrative Agent or any LenderBorrowing Base Properties, including, without limitation, operating statements, capital expenditure budgets, copies of all reports leases, copies of existing Environmental Assessments, and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations copies of Environmental Liabilityexisting property inspection reports;
(f) promptly after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly after receipt thereof by any Loan Party, copies of any final and binding PIPs relating to any Borrowing Base Property;
(h) a calculation of the Liquidity Condition (i) as of the end of each fiscal quarter through and including the fiscal quarter ending immediately preceding the Reporting Date, concurrently with the delivery of each Compliance Certificate as set forth in clause (a) above, and (ii) after the Reporting Date, as of the last day of each calendar month commencing with the month ending immediately following the Reporting Date through and including the Exchangeable Senior Note Payment Date, to be delivered by the 30th day after the end of each such month; and
(i) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by request.
(i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the upon its request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Sunstone Hotel Investors, Inc.), Credit Agreement (Sunstone Hotel Investors, Inc.)
Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Administrative AgentRequired Lenders:
(a) (RESERVED);
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted delivered to the board of directors (or the audit committee of the board of directors) of the Borrower by the Borrower’s independent public accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developmentsSecurities Exchange Act of 1934, and (iii) notice not otherwise required to be delivered to Agent pursuant hereto; provided, that copies of (and, upon the request of the Administrative Agent, copies of) any other information that is provided such documents may be delivered by Borrower to its shareholders generallyElectronic Delivery;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any statement or report furnished to and from the United States Environmental Protection Agency, any holder of debt securities of any Loan Party or any state Subsidiary thereof pursuant to the terms of any indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 6.01 or any state or local agency responsible for health and safety mattersother clause of this Section 6.02; provided, or that copies of any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitysuch documents may be delivered by Electronic Delivery;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the Securities and Exchange Commission (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof, except to the extent such delivery is prohibited by applicable Law or regulation; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) and if so delivered, shall be deemed to have been delivered on the Borrower shall deliver paper copies of such documents date delivered to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsSEC. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform that is designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”” Notwithstanding the foregoing, all materials and/or information delivered by Borrower via Electronic Delivery shall be deemed by all parties to be marked “PUBLIC” without the need to meet the requirement in (w) above.
Appears in 2 contracts
Samples: Credit Agreement (Unitil Corp), Credit Agreement (Unitil Corp)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), (or if such financial statements are delivered electronically, within two (2) Business Days of such electronic delivery) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrower (which delivery may, unless the Administrative Agent, or 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);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower a General Partner by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual proxy or financial statement or other report or communication sent to the public holders of limited partner interests in the Borrower, and copies of all annual, regular, periodic and special reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) all registration statements which any other filings made by Borrower or any Subsidiary Loan Party may file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request request; and
(e) to the extent the confidentiality Revolving Credit Agreement terminates prior to this Agreement, the information set forth in clause (a) in the last sentence of the definition of “Material Project EBITDA Adjustments” at such times as the same would have been delivered to the administrative agent of the Revolving Credit Agreement. provided that disclosure of confidential information is not required by pursuant to subsections (ib) Requirement and (d) of Law or this Section shall be subject to (iix) a contractual obligation to which such attorney-client privilege exceptions that the Borrower or any reasonably determines are necessary in order to avoid loss of its Subsidiaries is bound; and
attorney-client privilege and (gy) upon request by compliance with reasonable conditions to disclosure under non-disclosure agreements between the Borrower and Person(s) other than Affiliates thereof, and to the extent that the Administrative Agent (or a Lender is required to produce any such request not information to be made more than once in any calendar year) within thirty (30) days of such requesta regulatory authority, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made shall cooperate with the United States Copyright Office Administrative Agent or the United States Patent and Trademark Office since the date of the prior certificate (or, such Lender in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)efforts to obtain any required consents to disclosure. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) (A) after 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 10.02; or (B) after which such documents are posted on the Borrower’s behalf on DebtDomain or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), and (ii) the Borrower notifies (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents; provided that the Borrower shall deliver paper copies or soft copies (by electronic mail) of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies or soft copies until a written request to cease delivering paper copies or soft copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsLender. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a1) the Administrative Agent and/or the Arrangers and Bookrunners will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online DebtDomain or another similar electronic system (the “Platform”) and (b2) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arrangers and Bookrunners and the Lenders to treat such Borrower Materials as either publicly available information or not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws laws; (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger Arrangers and Bookrunners 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 Investor,” provided, however, that notwithstanding the foregoing, the Borrower shall not have any obligation to xxxx any Borrower Materials as “PUBLIC.”
Appears in 2 contracts
Samples: Term Loan Agreement (Oneok Inc /New/), Term Loan Agreement (ONEOK Partners LP)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal year ended December 31, 2008), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerBorrower and the Parent;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any written request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower a Loan Party by independent accountants in connection with the accounts or books of the Borrower Parent or any Subsidiary, or any audit of any of them;
(dc) 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 the Parent, and copies of all annual, regular, periodic and special reports and registration statements which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) within fifteen (15) days after being delivered to any Material Insurance Subsidiary, any final Report on Examination issued by the Applicable Insurance Regulatory Authority or the NAIC that results in material adjustments to the financial statements referred to in Sections 6.01(c), (d) or (e);
(e) promptly, upon written request of the Administrative Agent, a copy of each “Statement of Actuarial Opinion” and “Management Discussion and Analysis” for any Material Insurance Subsidiary which is required to be provided to the Applicable Insurance Regulatory Authority as to the adequacy of loss reserves of such Person;
(f) within five (5) Business Days of receipt, a copy of any financial examination reports by any Applicable Insurance Regulatory Authority with respect to any Material Insurance Subsidiary relating to the insurance business of such Person (when, and if, prepared); provided, such Material Insurance Subsidiary shall only be required to deliver any interim report hereunder at such time as such Material Insurance Subsidiary has knowledge that a final report will not be issued and delivered to the Administrative Agent, within ninety (90) days of any such interim report;
(g) within five (5) Business Days of such notice, notice of actual suspension, termination or revocation of any material Insurance License of any Material Insurance Subsidiary by any Applicable Insurance Regulatory Authority;
(h) promptly upon notice thereof, any change in the A.M. Best Rating financial strength rating of any Material Insurance Subsidiaries;
(i) copies as soon as available, but in any event within 10 Business Days after the end of Form 10-Q quarterly reportseach calendar month of each fiscal year, Form 10-K annual reportsa Collateral Value Certificate executed by a Responsible Officer of the Borrower calculated as of the last Business Day of such calendar month;
(j) promptly, and Form 8-K current reports, (ii) notice of (and, upon at the request of the Administrative Agent, copies of) a Collateral Value Certificate for any other filings made given Business Day executed by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request a Responsible Officer of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;calculated as of the close of business on such Business Day; and
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(fk) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Parent or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; andrequest;
(gl) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such requestpromptly after filing, a certificate of a Responsible Officer copy of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Post-Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)Filings. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests in writing the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Loan Parties hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Parent or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Each Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower Party hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arranger and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 that is not designated “Public InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Mercury General Corp), Credit Agreement (Mercury General Corp)
Certificates; Other Information. Deliver to the Administrative Agent (and, if requested in writing by the Administrative Agent, with copies for each Lender), in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrowing Agent, which Compliance Certificate shall state whether any Disposition was made, or any settlement or payment was received, during such Fiscal Quarter that required a prepayment pursuant to Section 5.3(a) or (c) the amount of such required prepayment and whether such prepayment was made;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any reasonable written request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) ), the manager, general partner or equivalent governing body of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiary, or any audit of any of them;
(c) promptly after the written assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any Subsidiary thereof with or arising under any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(d) promptly after the same are availableavailable and to the extent not publicly disclosed and then available via XXXXX on the SEC website, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of any Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) periodic and special reports and registration statements which any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 8.1 or any other clause of this Section 8.2;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof ,to the extent not publicly disclosed and then available via XXXXX on the SEC website;
(g) promptly following any request of therefor, information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, copies of all reports and written information to and from the United States Environmental Protection Agencyincluding, or any state or local agency responsible for environmental matterswithout limitation, the United States Occupational Health USA PATRIOT Act and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitythe Beneficial Ownership Regulation;
(fh) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) (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 Borrowers post such documents, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed in accordance with Section 12.1(b12.5; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower Borrowing Agent to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Borrowers shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower Borrowers with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Lender materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, Debt Domain, ClearPar, or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower The Borrowers hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerLead Arrangers, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger Lead 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 InvestorSide Information.”
Appears in 2 contracts
Samples: Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent for the benefit of the Lenders, in form satisfactory to the Administrative Agent and the Required Lenders and with such supporting detail as the Administrative Agent may reasonably request:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrower (which Compliance Certificate shall identify all new United States federal patent applications and grants, trademark applications and registrations, and copyright applications and registrations in which any Loan Party has an ownership interest, as required under Section 4(b) of the Security Agreement);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication (excluding tax returns) sent to the shareholders of Holdings, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) any other filings made by Borrower periodic and special reports and registration statements which Holdings may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any financial statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of if requested by the Administrative Agent or any LenderAgent, copies of all reports a report summarizing the insurance coverage (specifying type, amount and written carrier) in effect for the Consolidated Companies and containing such additional insurance information to and from as the United States Environmental Protection AgencyAdministrative Agent, or any state or local agency responsible for environmental mattersLender through the Administrative Agent, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitymay reasonably specify;
(f) promptly, and in any event within ten days after receipt thereof by any of the Consolidated Companies, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation;
(g) no later than August 31 of each year, commencing August 31, 2017, an Excess Cash Flow Certificate calculating Excess Cash Flow for the prior fiscal year and the resulting mandatory prepayment (if any) due and payable under Section 2.04(b)(iii); and
(h) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of any of the Borrower or any SubsidiaryConsolidated Companies, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required upon request of the Administrative Agent to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Cambium Learning Group, Inc.), Credit Agreement (Cambium Learning Group, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety no more than sixty (9060) days of after the start end of each Fiscal Year fiscal year of the Borrower, the an annual business plan and budget of the Borrower and its SubsidiariesSubsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements among other things, projections for each quarter of such Fiscal Yearfiscal year during which such business plan and budget is delivered, with evidence of approval thereof by Xxxxxxxx’s board of directors;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equity holders of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party files with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a certificate of a Responsible Officer of the Borrower containing information regarding the amount of all Dispositions, Involuntary Dispositions, Extraordinary Receipts and Acquisitions that occurred during the period covered by such financial statements;
(e) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters reports or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(df) promptly after the same are availablefurnishing thereof, copies of any statement or report furnished to Comerica Bank pursuant to the Comerica Loan Documents, any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(g) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, (ix) copies of Form 10each notice or other correspondence received from the SEC (or comparable agency in any applicable non-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (iiU.S. jurisdiction) notice concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with the SEC concerning material business developments, thereof and (iiiy) notice copies of (and, upon the request of the Administrative Agent, copies of) any material written correspondence or any other information that is provided by Borrower to its shareholders generallymaterial written communication from the Food & Drug Administration or any other federal regulatory body;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(fh) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Investment Documents, as the Administrative Agent or any Lender the Required Lenders may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gi) upon request by concurrently with the Administrative Agent delivery of the financial statements referred to in Sections 7.01(a) and (such request not to be made more than once in any calendar year) within thirty (30) days of such requestb), a certificate of a Responsible Officer of the Borrower listing (i) listing (A) all applicationsapplications by any Loan Party, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (iiB) all issuances of registrations or letters on existing applications by any Loan Party for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iiiC) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into by any Loan Party since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of any Loan Party or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements. Documents required to be delivered pursuant to Section 8.1(a) or 7.01(a), (b) or (c) or Section 8.2(d) 7.02 may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided provided, that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request for deliverydelivery by a Lender, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Credit Agreement (Verenium Corp), Credit Agreement (Verenium Corp)
Certificates; Other Information. Deliver to each Administrative Agent and each Lender, in form and detail satisfactory to the Administrative AgentAgents and the Required Lenders:
(a) concurrently with within 95 days after the delivery end of each fiscal year of the Domestic Borrower, a certificate of its independent certified public accountants certifying such financial statements referred to and stating that in Sections 8.1(a) making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such Default shall exist, stating the nature and status of such event;
(b)) within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Domestic Borrower and within 95 days after the end of each fiscal year of the Domestic Borrower, a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Domestic Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the any Administrative Agent or any LenderLender (unless restricted by applicable Law), copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the any Borrower by independent accountants in connection with the accounts or books of the any Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of any Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgents pursuant hereto;
(e) upon within 95 days after the request end of each fiscal year of the Administrative Agent Domestic Borrower, an internally prepared consolidated balance sheet of the Canadian Borrower and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income or any Lender, copies operations for such fiscal year certified by a Responsible Officer of the Domestic Borrower or the Canadian Borrower as fairly presenting in all reports material respects the financial condition and written information to results of operations of the Canadian Borrower and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;its Subsidiaries in accordance with GAAP; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the any Borrower or any SubsidiarySubsidiary as any Administrative Agent, or compliance with at the terms request of the Loan Documentsany Lender, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such financial statements, reports or proxy statements are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which a Borrower posts such documents, or provides a link thereto on a Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on a Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and each Administrative Agent have access (whether a commercial, third-party website or whether sponsored by an Administrative Agent); provided that: (i) the Borrower Borrowers shall deliver paper copies of such documents to the Administrative Agent Agents or any Lender that who requests the Borrower Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent Agents or such Lender and (ii) in the case of Section 8.2(d), the Borrower Borrowers shall notify (which may be by facsimile or electronic mail) the Administrative Agent Agents and each Lender of the posting of any such documents and provide to the Administrative Agent Agents by electronic mail email electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(c) to the Administrative Agent Agents and each of the Lenders. Except for such Compliance Certificates, the Administrative Agents shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent Agents and/or the Arrangers will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the any Borrower or its securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative AgentAgents, the ArrangerArrangers, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent Agents and the Arranger 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 Investor.” Notwithstanding the foregoing, no Borrower shall be under any obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Corinthian Colleges Inc), Credit Agreement (Corinthian Colleges Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower (i) within ninety days after the end of each fiscal year of the Borrower with respect to the Compliance Certificate for the financial statements required to be delivered pursuant to Section 7.01(a), and (ii) within forty-five days after the end of each fiscal quarter of the Borrower with respect to the Compliance Certificate for the financial statements required to be delivered pursuant to Section 7.01(b), in each case, together with a job status report for each domestic project of the Borrower and its Subsidiaries;
(b) prior to the date that is 30 days after the beginning of each fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2010, an annual business plan and budget of the Borrower and its Subsidiaries containing, among other things, pro forma financial statements for each quarter of such fiscal year;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by certificate of a Responsible Officer of the BorrowerBorrower containing information regarding the amount of all Dispositions, Involuntary Dispositions, Debt Issuances, Equity Issuances and Acquisitions that occurred during the period covered by such financial statements;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(ce) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; provided, however, that if any such report, letter or recommendation is prepared by the Borrower’s independent accountants, the Person requesting such information shall first execute any release or similar authorization reasonably requested by the Borrower’s independent accountants;
(df) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reportsany statement or report furnished to any holder of debt securities of any Loan Party thereof or any holder of the Senior Notes pursuant to the terms of any indenture, Form 10-K annual reportsloan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(g) promptly, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) in any other filings made event within five Business Days after receipt thereof by Borrower any Loan Party or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lenderthereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary thereof; and
(fh) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 7.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers BAS will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender BAS and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger BAS 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 that is not designated as “Public InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no Obligation to xxxx any borrower Materials “PUBLIC”.
Appears in 2 contracts
Samples: Credit Agreement (Insituform Technologies Inc), Credit Agreement (Insituform Technologies Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and the Lenders as contemplated by the penultimate paragraph of this Section 6.02:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended December 31, 2006), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly all annual, regular, periodic and special reports, Form 10-K annual reportsregistration statements and proxy statements which the Borrower may file or be required to file with the SEC under Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and Form 8-K current reports, (ii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent [reserved];
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all reports notices, requests and written information other documents (including amendments, waivers and other modifications) so received under or pursuant to and from the United States Environmental Protection Agencyany Related Document or instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any state other event that could materially impair the value of the interests or local agency responsible for environmental mattersthe rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the United States Occupational Health Administrative Agent, such information and Safety Administrationreports regarding the Related Documents and such instruments, or any state or local agency responsible for health indentures and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityloan and credit and similar agreements as the Administrative Agent may reasonably request;
(fh) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(i) [reserved];
(j) as soon as available, but in any event within 30 days after the Closing Date, a duly completed Compliance Certificate (on a pro forma basis) as of the last day of the fiscal quarter of the Borrower ended on September 30, 2006, signed by a Responsible Officer of the Borrower; and
(k) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) either by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) or by delivery or electronic communication to the applicable Lenders and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securitiessecurities except as contemplated below) (each, a “Public Public-Side Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (1x) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed to posted on the Public Lenders, (2) all such Borrower Materials Platform shall be clearly and conspicuously marked “PUBLIC-SIDE” which, at a minimum, shall mean that the word words “PUBLIC-SIDE” shall appear prominently on the first page thereof, ; (3y) by marking Borrower Materials “PUBLIC-SIDE,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that (A) prior to the creation of a Public Market, Lenders shall treat such Borrower Materials as containing material non-public information with respect to the Borrower and its Subsidiaries (“MNPI”), and the Borrower shall be deemed to have represented to the Lenders that it expects such Borrower Materials will cease to be MNPI at the time of creation of a Public Market and (B) to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” ; and (5z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC-SIDE” as being suitable contemplated above shall be treated as containing MNPI, shall not be posted on the Platform and shall be available to Lenders only upon request therefor (which request may apply generally to all such Borrower Materials). Any such request shall constitute a confirmation from the applicable Lender that it has compliance procedures for posting dealing with such MNPI, and that it will use and maintain such information only in compliance with those procedures, its contractual obligations and applicable law, including federal and state securities laws. Each Public-Side Lender shall designate individuals or advisors authorized to act on a portion behalf of the Platform Public-Side Lender to receive Borrower Materials not designated as “Public InvestorPUBLIC-SIDE” pursuant to the immediately preceding paragraph, including any notices pursuant to Section 6.03.”
Appears in 2 contracts
Samples: Bridge Loan Agreement (Sandridge Energy Inc), Bridge Loan Agreement (Sandridge Energy Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) concurrently with no later than five (5) days after the delivery of the financial statements referred to in Sections 8.1(aSection 5.01(a) and (bSection 5.01(b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety promptly after the same are publicly available, copies of all annual, regular, periodic, current and special reports which any Parent Company files with the SEC, proxy statements and other communications sent to the stockholders of any Parent Company and registration statements which any Parent Company files with the SEC or with any Governmental Authority that may be substituted therefor (90) days of other than amendments to any registration statement (to the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiariesextent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) and substance as agreed by in any case not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) promptly after any request by the Administrative Agent or any Lenderfurnishing thereof, copies of any detailed audit reports, management letters material requests or recommendations submitted material notices received by any Loan Party (other than in the ordinary course of business) or material statements or material reports furnished to the board any holder of directors (debt securities of any Loan Party or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of themits Subsidiaries pursuant to any Indebtedness in a principal amount greater than the Threshold Amount (but excluding material statements or material reports relating to the “borrowing base” or the determination thereof (including appraisals and collateral audits) furnished to any ABL Lender) and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 5.02;
(d) promptly after together with the same are availabledelivery of each Compliance Certificate pursuant to Section 5.02(a), (i) copies a description of Form 10-Q quarterly reportseach event, Form 10-K annual reports, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.09 and Form 8-K current reports, (ii) notice a list of (and, upon the request each Subsidiary that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the Administrative Agent, copies of) any other filings made by Borrower date of delivery of such Compliance Certificate (or any Subsidiary with confirming that there has been no change in such information since the SEC concerning material business developments, and (iii) notice of (and, upon Closing Date or the request date of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallylast such update);
(e) upon promptly following the Administrative Agent’s request of therefor, (i) all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any LenderLender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, copies of all reports including the Patriot Act and written information (ii) to and from the United States Environmental Protection Agencyextent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, or any state or local agency responsible for environmental matters, updates to the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityBeneficial Ownership Certification;
(f) at the time of delivery of financial statements pursuant to Section 5.01(a), a completed Supplemental Perfection Certificate, signed by a Financial Officer of the Borrower, (i) setting forth the information required pursuant to the Supplemental Perfection Certificate and indicating any changes in such information from the most recent Supplemental Perfection Certificate delivered pursuant to this Section 5.02 (or, prior to the first delivery of a Supplemental Perfection Certificate, from the Perfection Certificate delivered on the Closing Date) or (ii) certifying that there has been no change in such information from the most recent Supplemental Perfection Certificate delivered pursuant to this Section (or, prior to the first delivery of a Supplemental Perfection Certificate, from the Perfection Certificate delivered on the Closing Date); and
(g) subject to the last sentence of Section 5.10, promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b5.01(a) or Section 8.2(d5.01(b) or Section 5.02(b) or Section 5.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which any Parent Company or the Borrower posts such documents, or provides a link thereto on such Parent Company’s or the Borrower’s website on the Internet at the website address listed on Schedule 5.02; or (ii) on which such documents are posted on such Parent Company’s or the Borrower’s behalf on an Electronic System or another relevant website, if any, to which each Lender and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery to it or of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. For purposes of this Section 5.02, paper copies shall include copies delivered by facsimile transmission or electronically (such as “tif”, “pdf” or similar file formats delivered by email). The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders have personnel (i.e., Lenders that i) who do not wish to receive material non-public information with respect to the Borrower or and any of its securities) Affiliates that have publicly traded securities (each, a the “Public LenderRelevant Entities”), or the respective securities of any of the foregoing, and (ii) who may be engaged in investment and other market-related activities with respect to such Persons’ securities. At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1v) it will use commercially reasonable efforts the financial statements to identify that portion be provided under Sections 5.01(a) and (b) above, along with this Agreement (including the schedules and exhibits hereto) and clauses (c), (d), (e) and (f) of the definition of “Loan Documents”, shall be available to Public Lenders; (w) all other Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower any Relevant Entity or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.119.07), ; (4y) all Borrower Materials referred to in clause (v) above or otherwise marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” Side Information”; and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mxxx the Borrower Materials “PUBLIC”.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Certificates; Other Information. Deliver The Borrower will deliver to the Administrative Agenteach Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a5.01(a) and (b), a duly completed Officer’s Compliance Certificate certificate signed by a Responsible Officer responsible officer of the BorrowerBorrower 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;
(b) within ninety (90) days of unless filed with the start SEC and publicly available at the SEC’s website, promptly after the same are publicly available, copies of each Fiscal Year annual report, proxy or financial statement or other report or communication sent to the shareholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements that the annual business plan Borrower or any Subsidiary may file or be required to file with the SEC or any Governmental Authority succeeding to any or all of the Borrower functions of the SEC, or with any national securities exchange, and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior not otherwise required to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearbe delivered pursuant hereto;
(c) promptly after the furnishing thereof, copies of any material request or notice received by the Administrative Agent Borrower or any LenderSubsidiary, or any statement or report furnished by the Borrower or any Subsidiary to any holder of debt securities of the Borrower or any Subsidiary, pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished pursuant hereto;
(d) promptly after receipt thereof by the Borrower or any Subsidiary, copies of each notice or other correspondence received from the SEC concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Borrower or any Subsidiary thereof;
(e) promptly following request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (them as any Lender may from time to time reasonably request; and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptlypromptly following any request therefor, such additional other information regarding the operations, business, properties, liabilities (actual or contingent), condition (financial or corporate affairs otherwise) or prospects of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 2 contracts
Samples: Trust Note Amendment Agreement (Torchlight Energy Resources Inc), Foundation Note Amendment Agreement (Torchlight Energy Resources Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), (i) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year chief executive officer, chief financial officer, treasurer or controller of the Borrower, the annual business plan and (ii) a list of Domestic Subsidiaries, First Tier Foreign Subsidiaries, other Foreign Subsidiaries as of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter date of such Fiscal YearCompliance Certificate, containing the information with respect thereto as is contemplated by Schedule 5.13;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Exchange Act, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any statement or report furnished to and from the United States Environmental Protection Agency, any holder of debt securities of any Loan Party or any state Subsidiary thereof pursuant to the terms of any indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 6.01 or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arranger and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Exponential Interactive, Inc.), Credit Agreement (Exponential Interactive, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended September 30, 2011), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerHoldings;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Holdings, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) any other filings made by Borrower periodic and special reports and registration statements which Holdings may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon as soon as available, but in any event within 30 days after the request end of each fiscal year of Holdings, current certificates of property and liability insurance, naming the Administrative Agent, on behalf of the Administrative Agent Lenders, as an additional insured or any Lenderloss payee, copies as the case may be, under all insurance policies maintained with respect to the assets and properties of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityLoan Parties that constitutes Collateral;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(h) as soon as available, but in any event within 90 days after the end of each fiscal year of Holdings, (i) a report supplementing Schedules 5.08(c), 5.08(d)(i) and 5.08(d)(ii), including an identification of all owned and leased real property disposed of by any Loan Party or any Subsidiary thereof during such fiscal year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all real property acquired or leased during such fiscal year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete; (ii) a report supplementing Schedule 5.17, setting forth (A) a list of registration numbers for all patents, trademarks, service marks and copyrights awarded by the United States Copyright Office or the United States Patent and Trademark Office to any Loan Party or any Subsidiary thereof during such fiscal year and (B) a list of all patent applications, trademark applications, service xxxx applications and copyright applications submitted by any Loan Party or any Subsidiary thereof to the United States Copyright Office or the United States Patent and Trademark Office during such fiscal year and the status of each such application; and (iii) a report supplementing Schedules 5.08(e) and 5.13 containing a description of all changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete, each such report to be signed by a Responsible Officer of the Borrower and to be in a form reasonably satisfactory to the Administrative Agent, and, where applicable, accompanied by deeds of trust, trust deeds, deeds to secure debt, mortgages, Security Agreement Supplements, or IP Security Agreement Supplements executed by the applicable Loan Party;
(i) Prior to satisfaction of the Burnoff Condition, as soon as available, but in any event within 25 days after the end of each fiscal quarter, a Borrowing Base Certificate, as at the end of such fiscal quarter, duly certified by a Responsible Officer of the Borrower; and
(j) promptly, to the extent permitted by (i) the confidentiality provisions of any agreement applicable to any Loan Party or any Subsidiary thereof, or (ii) any applicable attorney-client privilege, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”
Appears in 1 contract
Samples: Credit Agreement (Gsi Group Inc)
Certificates; Other Information. Deliver to the Administrative Agent (and, if requested in writing by the Administrative Agent, with copies for each Lender), in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrowing Agent, which Compliance Certificate shall state whether any Disposition was made, or any settlement or payment was received, during such Fiscal Quarter that required a prepayment pursuant to Section 5.3(a) or (c) the amount of such required prepayment and whether such prepayment was made;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any reasonable written request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) ), the manager, general partner or equivalent governing body of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiary, or any audit of any of them;
(c) promptly after the written assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any Subsidiary thereof with or arising under any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(d) promptly after the same are availableavailable and to the extent not publicly disclosed and then available via XXXXX on the SEC website, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of any Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) periodic and special reports and registration statements which any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 8.1 or any other clause of this Section 8.2;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof ,to the extent not publicly disclosed and then available via XXXXX on the SEC website;
(g) promptly following any request of therefor, information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, copies of all reports and written information to and from the United States Environmental Protection Agencyincluding, or any state or local agency responsible for environmental matterswithout limitation, the United States Occupational Health USA PATRIOT Act and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitythe Beneficial Ownership Regulation;
(fh) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) (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 Borrowers post such documents, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed in accordance with Section 12.1(b12.5; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower Borrowing Agent to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Borrowers shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower Borrowers with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Lender materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, Debt Domain, ClearPar, or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Borrowers or its their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower The Borrowers hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerLead Arrangers, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger Lead 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 InvestorSide Information.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent (who shall promptly furnish to the other Lenders), in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerGFI;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the either Borrower by independent accountants in connection with the accounts or books of the such Borrower or any Subsidiary, or any audit of any of them;
(c) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a certificate of a Responsible Officer of GFI containing information regarding the amount of all Dispositions, Involuntary Dispositions, and Equity Issuances that occurred during the period covered by such financial statements;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of GFI, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which GFI may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Administrative Agent, copies of) Securities Exchange Act of 1934 or to a holder of any other filings made Indebtedness owed by Borrower GFI or any Subsidiary with the SEC concerning material business developments, in its capacity as such a holder and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any statement or report furnished to and from the United States Environmental Protection Agency, any holder of debt securities of any Loan Party or any state Subsidiary thereof pursuant to the terms of any indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 7.01 or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 7.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of a Responsible Officer of GFI (i) listing (A) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreements) made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (B) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreements) received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (C) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreements) that are reasonably necessary for the operation of the Businesses entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date) and (D) all such Copyrights, Patents or Trademarks that are subject to a licensing or franchise agreement, and (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of GFI or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements; and
(h) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower GFI or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or 7.01(a), (b) or (c) or Section 8.2(d7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which GFI posts such documents, or provides a link thereto on GFI’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on GFI’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower GFI shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower GFI to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower GFI shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance GFI shall be required to provide paper copies of the Compliance Certificates required by Section 7.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower GFI with any such request for delivery, and each Lender shall be solely responsible for requesting from the Administrative Agent delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers BAS will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the any Borrower or its securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Each Borrower hereby agrees that (1w) if it will decides, in its sole discretion, to xxxx any Borrower Materials “PUBLIC”, it shall use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) all clearly and conspicuously xxxx 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the ArrangerBAS, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Borrowers or its their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger BAS 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 Investor.” Notwithstanding the foregoing, no Borrower shall be under any obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (GFI Group Inc.)
Certificates; Other Information. Deliver In the case of the Borrower, deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended March 31, 2014), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) 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 the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) a Borrowing Base Certificate duly executed by a Responsible Officer of Borrower, with appropriate insertions, (i) copies not later than thirty (30) days following the end of Form 10-Q quarterly reportseach calendar quarter, Form 10-K annual reports, and Form 8-K current reportsdated as of the last day of such quarter (unless any certificate required by (ii) or (iii) below has already been delivered to the Administrative Agent for such calendar quarter or as of a later date), (ii) notice of (andin connection with each Loan Notice, upon the request dated as of the requested Loan funding date (but delivered to the Administrative Agent, copies of) any other filings made by Agent on the date Borrower or any Subsidiary with delivers the SEC concerning material business developmentsLoan Notice to the Administrative Agent pursuant to Section 2.02(a)), and (iii) notice in connection with each release of Collateral which is permitted under Section 9.10(a) or Section 9.10(b)(ii), dated as of the applicable date of release (andbut delivered to the Administrative Agent at least one (1) Business Day prior to such date);
(f) upon Administrative Agent’s request, or, if the sum of the Net Book Values of all Marine Containers owned by the Borrower exceeds Thirty Million Dollars ($30,000,000), within thirty (30) days after the end of each quarter of each fiscal year of Borrower, a summary setting forth (i) the number and type of Marine Containers included in the Collateral, (ii) their aggregate net book value, and (iii) their aggregate original cost (or, upon the request Administrative Agent’s request, a detailed report as of the end of such month, setting forth with respect to each unit of Marine Container then owned by Borrower its (1) serial or other identifying number, (2) in-service date, (3) net book value (including totals thereof), and (4) original cost (including totals thereof));
(g) upon the Administrative Agent’s request, as soon as practicable, and in any event not later than thirty (30) days after the end of each fiscal quarter, a Responsible Officer of the Guarantor, relating to all inventory and fleets managed by TEML, dated as of the end of the quarter, setting forth: (i) a breakout of inventory by type, (ii) utilization by inventory type, (iii) average per diem rates by inventory type, and (iv) a list of the ten (10) largest (in terms of cost equivalent unit on hire) customers of the TEML fleet, with detailed accounts receivable aging reports (listing receivables of 30, 60, 90, and over 90 days duration) for each and a summarized aging report for all other customers giving the same aging information, in each case, in form and substance satisfactory to, and with such additional information as may be from time to time reasonably requested by, the Required Lenders;
(h) promptly following receipt thereof, copies of (x) each Asset Base Report and Manager Report (each, as defined in the TMCL Indenture) and each Equipment and Lease Report (as defined in Section 7.1 of the Management Agreement (as such term is defined in the TMCL Indenture)), (y) each Asset Base Report and Manager Report (each, as defined in the TMCL II Indenture) and each Equipment and Lease Report (as defined in Section 7.1 of the Management Agreement (as such term is defined in the TMCL II Indenture)) and (z) the equivalent of the items described in clauses (x) and (y) with respect to each of TMCL III, TMCL IV and each other Receivables Subsidiary (other than TAP Funding and TWC);
(i) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other provision of this Section 6.02;
(j) as soon as available, but in any event within 30 days after the end of each fiscal year of the Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for the Borrower and containing such additional information as the Administrative Agent, copies of) or any other information that is provided by Borrower to its shareholders generallyLender through the Administrative Agent, may reasonably specify;
(ek) upon the request of the Administrative Agent or promptly, and in any Lenderevent within five Business Days after receipt thereof by any Loan Party, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection AgencySEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party, or any state or local agency responsible for environmental matterswhich, the United States Occupational Health and Safety Administrationif pursued through a determination adverse to such Loan Party, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitycould reasonably be expected to have a Material Adverse Effect;
(fl) at least 15 days prior to the commencement of each fiscal year of each of the Borrower and the Guarantor, a reasonably detailed consolidated budget for each such Person for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for each fiscal quarter during such fiscal year and setting forth the assumptions used for purposes of preparing each such budget) and, promptly when available and from time to time, any significant revisions of each such budget (including, without limitation, any amounts to be paid to any pension plan), which need not be prepared in accordance with GAAP, but which, in any event, shall be in a form acceptable to the Administrative Agent;
(m) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; andrequest.
(gn) upon request by not later than 30 days after the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days end of such requesteach fiscal quarter of Borrower, a certificate of report, signed by a Responsible Officer of the Borrower, setting forth as of the end of the most recent fiscal quarter of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date a breakout of the prior certificate (or, in the case of the first such certificate, the Closing Date)Marine Container Collateral by type, (ii) all issuances percentage (by Net Book Value) of registrations or letters on existing applications for CopyrightsMarine Container Collateral that is off-hire, Patents and Trademarks (each such term by equipment type, as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate end of such quarter, (or, in the case iii) Weighted Average Age of the first such certificate, the Closing Date)Marine Container Collateral, and (iiiiv) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in lessee concentrations with respect to the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)Marine Container Collateral. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(b) or (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance and if so delivered, shall be deemed to have been delivered on the date on which made available on XXXXX following filing with Section 12.1(b)the SEC; provided that: that (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that, so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities, (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerBorrower (which delivery may, unless the Administrative Agent 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);
(b) within ninety (90) 45 days after the end of each of the start first three fiscal quarters of the Borrower and 90 days after the end of each Fiscal Year fiscal year of the Borrower, a narrative discussion and analysis of the annual business plan financial condition and results of operations of the Borrower and its Subsidiaries, in form Subsidiaries for such fiscal quarter and substance as agreed by for the Administrative Agent prior period from the beginning of the then current fiscal year to the Closing Date and containing projected financial statements for each quarter end of such Fiscal Yearfiscal quarter or fiscal year, as compared to the comparable periods of the previous fiscal year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are availableavailable to the extent applicable, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Parent and copies of all annual, regular, periodic and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower special reports and registration statements which Parent may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon to the request extent applicable, within five (5) Business Days after the furnishing thereof, copies of any material financial statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the Administrative Agent terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any Lenderother clause of this Section 6.02;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by Parent or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of Parent or any Subsidiary thereof;
(g) not later than five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all reports notices, requests and written information other documents (including amendments, waivers and other modifications) so received under or pursuant to and from the United States Environmental Protection Agencyany instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any state other event that could materially impair the value of the interests or local agency responsible for environmental mattersthe rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the United States Occupational Health Administrative Agent, such information and Safety Administrationreports regarding such instruments, or any state or local agency responsible for health indentures and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityloan and credit and similar agreements as the Administrative Agent may reasonably request;
(fh) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(i) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a report supplementing Schedules 5.08(c), 5.08(d) and 5.13, in each case to the extent not previously disclosed on such Schedule as may be necessary for such Schedule to be accurate and complete, and (ii) a report supplementing the Perfection Certificate, setting forth (A) a list of registration numbers for all patents, trademarks, service marks, trade names and copyrights awarded to any Loan Party or any Subsidiary thereof during such fiscal year and (B) a list of all patent applications, trademark applications, service xxxx applications, trade name applications and copyright applications submitted by any Loan Party or any Subsidiary thereof during such fiscal year and the status of each such application; each such report to be signed by a Responsible Officer of the Borrower and to be in a form reasonably satisfactory to the Administrative Agent; and
(j) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its written request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”and
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:Agent (for distribution to each Lender):
(a) concurrently with the within five (5) days of delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (including any such delivery in accordance with the next to last paragraph of this Section 6.02) (commencing with the delivery of the financial statements for the fiscal quarter ending June 30, 2022), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerOfficer;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Guarantor by independent accountants in connection with an audit of the accounts or books of the Borrower or any SubsidiaryGuarantor (which delivery may, unless the Administrative Agent, or any audit of any of thema 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);
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Guarantor, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements that the Guarantor may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly, copies ofand in any event within five (5) any other filings made Business Days after receipt thereof by Borrower the Guarantor or any Subsidiary with thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning material business developments, and (iii) notice of (and, upon the request any investigation by such agency regarding financial or other operational results of the Administrative Agent, copies of) Guarantor or any other information that is provided by Borrower to its shareholders generallySubsidiary thereof;
(e) upon the promptly following any request of therefor, information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” rules and regulations and Anti-Money Laundering Law, copies including the Patriot Act and the Beneficial Ownership Regulation (in the case of all reports and written information the Beneficial Ownership Regulation, to and from the United States Environmental Protection Agency, extent the Borrower or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Ventas qualifies as a “legal entity customer” under such regulations); and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower Guarantor or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which the Guarantor posts such documents, or provides a link thereto, on the Guarantor’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Guarantor’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent ), which shall notify each Lender, of the posting of any such documents and and, upon 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Credit Parties hereby acknowledges acknowledge that (a) the Administrative Agent Agent, the Bookrunners and/or the Arrangers will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower Credit Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, Clear Par or another a similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders have personnel that do not wish to receive material non-public information with respect to the Borrower Credit Parties or its their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At The Credit Parties hereby agree that so long as any time after Credit Party is the making issuer of an Incremental Term Loan any outstanding debt or equity securities that are registered or issued pursuant to Section 5.13 a private offering or upon notice by the Administrative Agent to the Borrower that is actively contemplating issuing any Lender is a Public Lender, the Borrower hereby agrees that such securities (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, (3x) by marking Borrower Materials “PUBLIC,” the Borrower Credit Parties shall be deemed to have authorized the Administrative Agent, the ArrangerBookrunners, the Issuing Lender Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Credit Parties or its their securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), 10.07) (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent Agent, the Bookrunners and the Arranger Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” or that are marked “PRIVATE” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, the Credit Parties shall be under no obligation to mxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (bSection 6.01(a), a duly completed Officer’s Compliance Certificate signed by certificate of its independent certified public accountants to the effect that they have read a Responsible Officer copy of this Agreement, and that, in making the Borrowerexamination necessary to said certification, they have obtained no knowledge of any Default, or if such accountants shall have obtained knowledge of any then existing Default they shall disclose in such statement any such Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default;
(b) within ninety (90) days in form and detail reasonably satisfactory to the Administrative Agent, concurrently with the delivery of the start of each Fiscal Year financial statements referred to in Sections 6.01(a) and (b) commencing with the fiscal quarter ended December 31, 2021, a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, chief accounting officer, treasurer or controller of the Borrower, including a list that identifies (i) each Material Domestic Subsidiary formed or acquired during the annual business plan of the Borrower and its Subsidiariesfiscal quarter then ended, in form and substance as agreed including pursuant to a merger or Investment permitted by the Administrative Agent prior provisions of this Agreement, (ii) each Domestic Subsidiary designated as a Material Subsidiary pursuant to Section 6.14(a)(i) during the Closing Date fiscal quarter then ended and containing projected financial statements for (iii) each Material Domestic Subsidiary that was Disposed of during the fiscal quarter of such Fiscal Yearthen ended, including pursuant to a sale, merger, dissolution, liquidation, consolidation or other Disposition;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form each 10-K, 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon statement which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon to the request of extent permitted by applicable law, promptly, and in any event within five Business Days after receipt thereof by the Administrative Agent Borrower or any LenderSubsidiary, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by the enforcement division of such agency regarding financial or other operational results of the Borrower or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents Information required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such information is included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent or any Lender, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any such Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or pdf copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “"Borrower Materials”") by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar confidential and secure electronic system (the “"Platform”") and (b) certain of the Lenders (each, a "Public Lender") may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities) (each, a “Public Lender”). At any time after All Borrower Materials that have been filed with the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by SEC and available on the Administrative Agent to the Borrower that any Lender is a Public Lender, the SEC's XXXXX system shall be deemed "PUBLIC." The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials (if any) that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “"PUBLIC,” " the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “"Public Investor,” Side Information;" and (5z) the Administrative Agent and the Arranger 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 that is not designated “"Public InvestorSide Information.”" Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials "PUBLIC."
Appears in 1 contract
Samples: Senior Term Loan Credit Agreement (United States Cellular Corp)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower, which shall include a description in detail reasonably satisfactory to the Administrative Agent of all promissory notes, including intercompany promissory notes, including between or among any of the Loan Parties or a Loan Party and any Affiliate of a Loan Party and received by a Loan Party since the date of the previous Compliance Certificate to the extent required to be pledged by a Loan Party pursuant to the Collateral Documents (in each case, which delivery may, unless the Administrative Agent, or 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;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year[Reserved];
(c) promptly after any request by the Administrative Agent or any Lendersame are available, copies of any detailed audit reportseach annual report, management letters proxy or recommendations submitted financial statement or other report or communication sent to the board of directors stockholders, partners or members (or the audit committee equivalent of the board of directorsany thereof) of the Borrower by independent accountants in connection with the accounts or books any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower or any Subsidiaryof its Subsidiaries may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any audit of national securities exchange, and in any of themcase not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the same are availablefurnishing or receipt thereof, (i) copies of Form 10-Q quarterly reportsany material statement or report furnished to any holder of debt securities in a principal amount greater than the Threshold Amount of any Loan Party or of any of its Subsidiaries, Form 10-K annual reports, and Form 8-K current reports, or (ii) any notice received from any holder of (anddebt securities in a principal amount greater than the Threshold Amount of any Loan Party or of any of its Subsidiaries, upon pursuant to the request terms of any indenture, loan or credit or similar agreement, in each case, regarding or related to any material breach or default by the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and of its Subsidiaries or any change of control (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyas defined in such agreement);
(e) upon the Upon request of from the Administrative Agent Agent, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as the Administrative Agent, or any LenderLender through the Administrative Agent, may reasonably specify;
(f) [Reserved];
(g) [Reserved];
(h) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any real property described in any Collateral Documents to be subject to any new and material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(i) at least concurrently with the closing thereof, notice of any acquisition or divestiture by the Borrower or any of its Subsidiaries of any assets or properties in excess of $15,000,000; provided that the Borrower shall not be required to deliver any notice or documentation pursuant to this paragraph with respect to any Permitted Sale/Leaseback Transactions;
(j) promptly upon its becoming available, copies of all reports and written information to and from notices or documents received by the United States Environmental Protection Agency, Borrower or any state Loan Party pursuant to any Material Contract alleging a material default or local agency responsible for environmental matters, nonperformance by such Person thereunder or terminating or suspending any such Material Contract to the United States Occupational Health and Safety Administration, or extent any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitythe foregoing could reasonably be expected to have a Material Adverse Effect;
(fk) concurrently with the designation of any Wholly Owned Subsidiary as an Immaterial Subsidiary, a written notice of such designation signed by a Responsible Officer of the Borrower (which delivery may, unless the Administrative Agent 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), and if requested by the Administrative Agent, the consolidating financial information of such Immaterial Subsidiary accompanied by a certificate signed by a Responsible Officer of the Borrower certifying that such consolidating financial information fairly presents in all material respects the consolidated financial condition of such Immaterial Subsidiary;
(l) if the Borrower elects to have a Specified Acquisition Period apply with respect to a Specified Acquisition, written notice of such election concurrently with the delivery of the Compliance Certificate required under Section 6.02(b) for the fiscal quarter during which the Specified Acquisition occurred; and
(m) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower shall deliver paper copies of posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given whether sponsored by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(dAgent), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its securities) (eachAffiliates, a “Public Lender”). At or the respective securities of any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that foregoing, and who may be distributed to the Public Lenders, (2) all such Borrower Materials shall be clearly engaged in investment and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material nonother market-public information (although it may be sensitive and proprietary) related activities with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”such
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerPRA;
(b) (i) within ninety thirty days after the end of each calendar month beginning with the calendar month ending April 30, 2017, (90A) days a duly completed Borrowing Base Certificate signed by a Responsible Officer of PRA, together with a full accounts receivable aging report and an accounts payable listing, prepared by the management of PRA and (B) a duly completed Canadian Borrowing Base Certificate signed by a Responsible Officer of the start of each Fiscal Year Canadian Borrower, together with a full accounts receivable aging report and an accounts payable listing, prepared by the management of the Canadian Borrower, the annual business plan of the Borrower and its Subsidiariesin each case, in a substantially similar form and substance as agreed provided by PRA or the Canadian Borrower, as applicable, to the Administrative Agent prior or is otherwise reasonably acceptable to the Closing Date Administrative Agent and containing projected financial statements for each quarter (ii) upon the request of such Fiscal Yearthe Administrative Agent, an Asset Pool Report;
(c) no more than ninety days after the end of each fiscal year of PRA, beginning with the fiscal year ending December 31, 2017, an annual business plan and budget of PRA and its Subsidiaries for such fiscal year;
(d) promptly after the same are filed with the SEC, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of PRA, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after any request by the Administrative any Agent or any Lender, copies of any detailed audit reports, management letters or written recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower PRA by independent accountants in connection with the accounts or books of the Borrower PRA or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; andrequest;
(g) upon request by concurrently with the Administrative Agent (such request not delivery of the financial statements referred to be made more than once in any calendar year) within thirty (30) days of such requestSection 7.01(a), a certificate of a Responsible Officer of the Borrower listing PRA (i) listing (A) all applicationsapplications by any Loan Party, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Restatement Date), (iiB) all issuances of registrations or letters on existing 13598911v3 applications by any Loan Party for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Restatement Date), and (iiiC) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into by any Loan Party since the date of the prior certificate (or, in the case of the first such certificate, the Closing Restatement Date), (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of any Loan Party or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements and (iii) listing all Indebtedness currently outstanding pursuant to Section 8.03(r) of this Agreement, including the amount of such Indebtedness attributable to each country outside the United States; and
(h) promptly following any request therefor, information and documentation reasonably requested by an Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws, and, with respect to any Beneficial Ownership Certification delivered to any Lender, promptly after a Responsible Officer of the Borrower has knowledge notify the Administrative Agent of any change in the information provided that would result in a change to the list of beneficial owners identified in such certification.
(i) To the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, an updated Beneficial Ownership Certification promptly following any change in the information provided in the Beneficial Ownership Certification delivered to any Lender in relation to such Loan Party that would result in a change to the list of beneficial owners identified in such certification. Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which PRA posts such documents, or provides a link thereto on PRA’s website on the Borrower shall deliver paper copies of Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on PRA’s behalf on an Internet or intranet website, if any, to which each Lender and the Agents have access (whether a commercial, third- party website or whether sponsored by the Administrative Agent); provided, that: if notifications are no longer provided by the SEC’s website, PRA shall notify the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower PRA hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will BofA Securities may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower PRA hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower PRA or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower PRA hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower PRA shall be deemed to have authorized the Administrative AgentAgents, the Arranger, the Issuing Lender BofA Securities and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower PRA or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be 13598911v3 treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger BofA Securities 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 that is not designated as “Public InvestorSide Information.”
Appears in 1 contract
Samples: Credit Agreement (Pra Group Inc)
Certificates; Other Information. Deliver to the Administrative Agent:Agent and each Lender (except as provided in Section 6.02(a)):
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the BorrowerBorrower and delivered to the Administrative Agent (which delivery may, unless the Administrative Agent, or 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);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are publicly available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information clause of this Section 6.02; provided that is provided by Borrower with respect to its shareholders generallyCal Dive I-Title XI, only notices of default shall be required to be so furnished;
(e) upon promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the request SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(i) As soon as available but in any event on or before March 31 of each year, commencing March 31, 2007, an engineering report in form and substance meeting the requirements of the SEC for financial reporting purposes and reasonably satisfactory to the Administrative Agent, certified by a firm or firms of independent consulting petroleum engineers selected by the Borrower and reasonably acceptable to the Administrative Agent or any Lenderas fairly setting forth
(A) the proved developed producing reserves, copies proved developed non-producing reserves, proved developed shut-in reserves, proved developed behind pipe reserves, and proved undeveloped reserves (separately classified as such) attributable to the Oil and Gas Properties as of all reports December 31 of the previous year, (B) the aggregate present value, determined on the basis of stated pricing assumptions, of the future net income with respect to such Oil and written Gas Properties, discounted at a stated per annum discount rate, (C) projections of the annual rate of production, gross income, and net income with respect to such Oil and Gas Properties, and (D) information and analysis comparable in scope to that contained in the initial Reserve Report for the Borrower provided pursuant to Section 4.01(p), and from such other information as the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilityAdministrative Agent may reasonably request;
(fii) As soon as available but in any event on or before September 30 of each year, commencing September 30, 2007, an internal engineering report in form and substance reasonably satisfactory to the Administrative Agent, certified by the Borrower's chief in-house engineer as fairly setting forth (A) the proved developed producing reserves, proved developed non-producing reserves, proved developed shut-in reserves, proved developed behind pipe reserves, and proved undeveloped reserves (separately classified as such) attributable to the Oil and Gas Properties as of June 30 of such year, (B) the aggregate present value, determined as the expected future net revenues from such proved reserves in accordance with the requirements for determination of the Collateral Coverage Ratio, of the future net income with respect to such Oil and Gas Properties, discounted at a stated per annum discount rate, (C) projections of the annual rate of production, gross income, and net income with respect to such Oil and Gas Properties, and (D) information and analysis comparable in scope to that contained in the initial Reserve Report for the Borrower provided pursuant to Section 4.01(p), and such other information as the Administrative Agent may reasonably request;
(iii) Concurrently with the delivery of each Compliance Certificate pursuant to Section 6.02(a), to the extent a Reserve Report is not delivered on such date, updated information, in form and substance reasonably satisfactory to the Administrative Agent, updating the proved reserves attributable to the Domestic Oil and Gas Properties as provided in the most recent engineering report delivered pursuant to clause (i) or (ii) of this Section 6.02(f), to give effect to material acquisitions, material Dispositions, and production (with all production to be attributed to proved developed producing reserves for such purpose) since the date of the most recent Reserve Report, and setting forth the calculation of the net present value of the expected future net revenues from such proved reserves in accordance with the requirements for determination of the Collateral Coverage Ratio, certified by the Borrower's chief in-house engineer as fairly setting forth the information provided therein;
(iv) Prior to the delivery of the certificate described in Section 6.02(f)(v), the Borrower shall review each Reserve Report or Interim Engineer's Certificate provided pursuant to the foregoing clauses and the then-current Mortgaged Properties to ascertain whether such Mortgaged Properties represent at least 80% of the total value of the proved developed reserves attributable to the Domestic Oil and Gas Properties and at least 80% of the total value of the proved undeveloped reserves attributable to the Domestic Oil and Gas Properties, in each case, as evaluated in the applicable Reserve Report or Interim Engineer's Certificate. For the avoidance of doubt, the methodology utilized to calculate the total value of the Mortgaged Properties shall be the same methodology utilized to calculate the value of the proved reserves attributable to the Domestic Oil and Gas Properties in the applicable Reserve Report or Interim Engineer's Certificate; and
(v) With the delivery of each Reserve Report and, solely with respect to clause (B) below, with the delivery of each Interim Engineer's Certificate, a certificate from the Borrower's chief in-house engineer, substantially in the form of Exhibit F, certifying that: (A) the information contained in the Reserve Report and any other information delivered by the Borrower and its Subsidiaries in connection therewith is true and correct in all material respects and (B) attached thereto is a schedule of the Domestic Oil and Gas Properties evaluated by such Reserve Report or Interim Engineer's Certificate, indicating which of such properties are Mortgaged Properties and demonstrating (y) the percentage the (i) the total value of the proved developed reserves attributable to such Domestic Oil and Gas Properties which are Mortgaged Properties bears to (ii) the total value of the proved developed reserves attributable to all such Domestic Oil and Gas Properties and (z) the percentage that (i) the total value of the proved undeveloped reserves attributable to such Domestic Oil and Gas Properties which are Mortgaged Properties bears to (ii) the total value of the proved undeveloped reserves attributable to all such Domestic Oil and Gas Properties.
(g) (i) on or before each of the second, fourth, sixth and eighth anniversaries of the Closing Date (and continuing on each subsequent even-numbered anniversary thereof while this Agreement remains in effect), appraisals of the vessels, remotely operated vehicles, and trenchers of the Loan Parties, and (ii) at the election of the Borrower, on each date that it delivers, as a result of any one or more upgrades, improvements, enlargements, re-configurations, acquisitions or completed constructions that it in good faith believes is material, a revised appraisal that covers either (A) each such affected vessel, remotely operated vehicle or trencher previously covered by the appraisal of vessels, remotely operated vehicles and trenchers, or revised appraisal for any such equipment, most recently-delivered pursuant to Section 4.01 or this Section 6.02(g) or (B) such newly acquired or constructed vessel, remotely operated vehicle or trencher, as the case may be (each of which revised appraisals shall, if applicable, replace the most-recently delivered appraisal, or portion thereof, pertaining to such equipment for which a revised appraisal is delivered and otherwise shall be read and utilized together with all other appraisals most-recently delivered pursuant to Section 4.01 or this Section 6.02(g)), in each case in a form and substance, and from an appraiser, reasonably acceptable to the Administrative Agent; and
(h) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(b), (c), (d), or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting by it of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “"Borrower Materials”") by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “"Platform”") and (b) certain of the Lenders may 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”"). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “"PUBLIC,” " the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and or proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials so marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “"Public Investor,” ;" and (5z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not so marked “"PUBLIC” " as being suitable only for posting on a portion of the Platform not designated “"Public Investor.”"
Appears in 1 contract
Samples: Credit Agreement (Helix Energy Solutions Group Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), (i) a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrowerchief executive officer, the annual business plan chief financial officer, treasurer or controller of the Borrower and its Subsidiaries, in form (ii) a copy of management’s discussion and substance as agreed by the Administrative Agent prior analysis with respect to the Closing Date and containing projected such financial statements for each quarter of such Fiscal Yearstatements;
(c) promptly after any request by the Administrative Agent or any Lenderreceipt thereof, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants in connection with the accounts or books of the Borrower any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and written information not otherwise required to and from be furnished to the United States Environmental Protection Agency, Lenders pursuant to Section 6.01 or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) as soon as available, but in any event within 30 days after the end of each Fiscal Year of the Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify, together with binding insurance certificates identifying the Administrative Agent as additional insured or loss payee as applicable;
(g) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC or the Federal Trade Commission (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results or the franchise operations of any Loan Party or any Subsidiary thereof;
(h) promptly upon completion thereof, any amendment or modification to, restatement of, any FDD or any additional FDD prepared by any Loan Party;
(i) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(j) concurrently with the delivery of the financial statements referred to in Section 6.01(a), updated Schedules 5.08(b), 5.08(c), 5.08(d)(i), 5.08(d)(ii), 5.08(e), 5.13, 5.21, 5.22, 5.24 and 5.26 certified to be true, correct and complete as of the date of such delivery by a Responsible Officer of the Borrower and in each case, in form substantially similar to such schedule that was previously delivered to the Administrative Agent in accordance with the terms of this Agreement and reasonably satisfactory to the Administrative Agent;
(k) concurrently with the delivery of the financial statements referred to in Section 6.01(b), an updated Schedule 5.17 certified to be true, correct and complete as of the date of such delivery by a Responsible Officer of the Borrower, in form substantially similar to such schedule that was previously delivered to the Administrative Agent in accordance with the terms of this Agreement and reasonably satisfactory to the Administrative Agent;
(l) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate from a Responsible Officer of the Loan Parties detailing the prepayments made pursuant to Section 2.05(b)(i) through (iii) during such Fiscal Year covered by such financial statements, together with all supporting information reasonably requested by the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent; and
(m) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrower any Loan Party or any SubsidiarySubsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after In the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower event that any Lender there is a Public LenderLender party to this Agreement, then the Borrower hereby agrees that (1) upon the request of the Administrative Agent it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials are not marked “PUBLIC” and constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor.” Notwithstanding the foregoing, the Borrower shall be under no Obligation to xxxx any Borrower Materials “PUBLIC”.
Appears in 1 contract
Samples: Credit Agreement (Benihana Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSection 6.01(a) and (b), (i) a duly completed Officer’s Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower and (ii) if the information set forth on the most recently delivered Schedule 5.13(b) is no longer true and correct, an updated Schedule 5.13(b) identifying each Immaterial Domestic Subsidiary and Immaterial Foreign Subsidiary with a Responsible Officer certification by the chief executive officer, chief financial officer, treasurer or controller of the Borrower, demonstrating in reasonable detail that such Immaterial Domestic Subsidiaries and Immaterial Foreign Subsidiaries satisfy the definition thereof (in each case which delivery may, unless the Administrative Agent, or 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);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt or equity securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental LiabilitySubsidiary thereof;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to request;
(g) as soon as available, but in any event within 30 days after the extent end of each fiscal year of the confidentiality Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify; and
(h) promptly after the assertion or occurrence thereof, notice of such information is not required any action or proceeding against or of any noncompliance by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower any Loan Party or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in with any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing Environmental Law or Environmental Permit that could (i) all applications, if any, for Copyrights, Patents reasonably be expected to have a Material Adverse Effect or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined cause any property described in the Security Agreement) by the United States Copyright Office Mortgages to be subject to any restrictions on ownership, occupancy, use or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)transferability under any Environmental Law. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) or referred to in Section 6.03(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (1) 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 10.02; or (2) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” (and the Administrative Agent agrees that only Borrower Material marked “PUBLIC” will be made available on such portion of the Platform) and (5z) the Administrative Agent and the Arranger 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 that is not designated “Public InvestorSide Information.”
Appears in 1 contract
Samples: Credit Agreement (Diamond Foods Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent (for further distribution to each Lender), in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower, certifying compliance with the covenant set forth in Section 8.16 and setting forth a calculation of Consolidated Revenues and Consolidated Net Sales, in each case, for the four fiscal quarter period covered by such Compliance Certificate;
(b) within ninety as soon as practicable, and in any event not later than sixty (9060) days of after the start commencement of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year commencing January 1, 2017, an annual business plan and budget of the Borrower and its SubsidiariesSubsidiaries for the then current fiscal year containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements among other things, projections for each quarter of such Fiscal Yearfiscal year;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders (other than in their capacities as employees or members of the Board of Directors of any Loan Party) of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after any reasonable request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board Board of directors Directors (or the audit committee of the board Board of directorsDirectors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are availablefurnishing thereof, copies of any material statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, (i) copies of Form 10each notice or other correspondence received from the SEC (or comparable agency in any applicable non-Q quarterly reports, Form 10-K annual reports, U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof and Form 8-K current reports, (ii) notice copies of (and, upon the request of the Administrative Agent, copies of) any material written correspondence or any other filings made by Borrower material written communication from the FDA or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyregulatory body;
(eg) as soon as practicable upon the reasonable request of the Administrative Agent or any Lender, copies of all reports the most recent monthly statements for each Deposit Account and written information to other bank account or securities account of the Borrower and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilityeach other Loan Party;
(fh) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gi) upon request by concurrently with the Administrative Agent delivery of the financial statements referred to in Sections 7.01(a) and (such request not to be made more than once in any calendar year) within thirty (30) days of such requestb), a certificate of a Responsible Officer of the Borrower listing (i) listing (A) all applicationsapplications by any Loan Party, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (iiB) all issuances of registrations or letters on existing applications by any Loan Party for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iiiC) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into by any Loan Party since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (D) such supplements to Schedule 6.17 as are necessary to cause such schedule to be true and complete in all material respects as of the date of such certificate and (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of any Loan Party or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements. Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d) 7.02 may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower shall deliver paper copies of posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 11.02, 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 the Administrative Agent have access (whether a commercial, third-party website or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given whether sponsored by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(dAgent); provided, that: the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request for deliverydelivery by a Lender, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Samples: Credit Agreement (Relypsa Inc)
Certificates; Other Information. Deliver to the Administrative Agent:Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in this Section 6.02):
(a1) concurrently with no later than five (5) days after the delivery of the financial statements referred to in Sections 8.1(a6.01(1) and (b2) (commencing with such delivery for the fiscal year ending December 31, 2021), a duly completed Officer’s Compliance Certificate signed by a Responsible Financial Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d2) promptly after the same are publicly available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all special reports and written information to and from registration statements which the United States Environmental Protection Agency, Borrower or any state Restricted Subsidiary files with the SEC or local agency responsible for environmental matterswith any Governmental Authority that may be substituted therefor or with any national securities exchange, as the United States Occupational Health case may be (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8), and Safety Administration, or in any state or local agency responsible for health and safety matters, or case not otherwise required to be delivered to the Administrative Agent pursuant to any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f3) promptly after the furnishing thereof, copies of any notices of default to any holder of any class or series of debt securities of any Loan Party having an aggregate outstanding principal amount greater than the Threshold Amount (in each case, other than in connection with any board observer rights) and not otherwise required to be furnished to the Administrative Agent pursuant to any other clause of this Section 6.02;
(4) together with the delivery of the Compliance Certificate with respect to the financial statements referred to in Section 6.01(1), (a) a report setting forth the information required by Section 1(a) of the Perfection Certificate (or confirming that there has been no change in such information since the later of the Closing Date or the last report delivered pursuant to this clause (a)) and (b) a list of each Subsidiary of the Borrower that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such list or a confirmation that there is no change in such information since the later of the Closing Date and the last such list; and
(5) promptly, but subject to the limitations set forth in Section 6.10 and Section 10.09, such additional information regarding the business, business and financial or corporate affairs of the Borrower any Loan Party or any Material Subsidiary that is a Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time on its own behalf or on behalf of any Lender reasonably request in writing from time to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)time. Documents required to be delivered pursuant to Section 8.1(a) or (b) 6.01 or Section 8.2(d6.02(2) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s (or any Parent Company’s) website on the Internet at the website address listed on Schedule 10.02 hereto (or as such address may be updated from time to time in accordance with Section 12.1(b10.02); or (b) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: that (i) upon written request by the Administrative Agent, the Borrower shall will deliver paper copies of such documents to the Administrative Agent or for further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any Lender that requests the Borrower such information to deliver such paper copies Public Lenders as described in this Section 6.02) until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and or link and, upon the Administrative Agent’s 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery to it or of paper copies of such documents from the Administrative Agent 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 Lenders Banks materials and/or or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Intralinks, SyndTrak, ClearPar or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public any information with respect to the Borrower Holdings, their Subsidiaries or its securities) their respective securities that is not Public-Side Information, and who may be engaged in investment and other market-related activities with respect to such Person’s securities (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1i) it will use commercially reasonable efforts to identify that portion of at the Administrative Agent’s request, all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials shall Lenders will be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall will appear prominently on the first page thereof, ; (3ii) by marking Borrower Materials “PUBLIC,” the Borrower shall will be deemed to have authorized the Administrative Agent, the Arranger, Lenders and the Issuing Lender and the Lenders Banks to treat such Borrower Materials as not containing any material nononly Public-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws Side Information (provided, however, that to the extent such Borrower Materials constitute Information, they shall will be treated as set forth in Section 12.1110.09), ; (4iii) all Borrower Materials marked “PUBLIC” and, except to the extent the Borrower notifies the Administrative Agent to the contrary, any Borrower Materials provided pursuant to Section 6.01(1), 6.01(2) or 6.02(1) are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (5iv) the Administrative Agent and the Arranger Arrangers shall be entitled to treat any Borrower Materials that are not marked specifically identified as “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public InvestorSide Information.”” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark the Borrower Materials “PUBLIC.” Anything to the contrary notwithstanding, nothing in this Agreement will require Holdings, the Borrower or any Subsidiary to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter, or provide information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure is prohibited by Law or binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product; provided that in the event that the Borrower does not provide information that otherwise would be required to be provided hereunder in reliance on the exclusions in this paragraph relating to violation of any obligation of confidentiality, the Borrower shall use commercially reasonable efforts to provide notice to the Administrative Agent promptly upon obtaining knowledge that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality).
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower[reserved];
(b) within ninety (90) days of the start a copy of each Fiscal Year notice (including notice of any Cash Dominion Trigger Event or Diligence Trigger Event (each as defined in the BorrowerFirst Lien Credit Agreement), certificate (including each Borrowing Base Certificate and Compliance Certificate (each as defined in the First Lien Credit Agreement)), appraisal of Collateral, commercial finance examination, Report or any other information delivered or received by the First Lien Agent or the lenders under the First Lien Credit Agreement, in each case at the time delivered or required to be delivered to, or received by, the annual business plan of the Borrower and its SubsidiariesFirst Lien Agent or such lenders, in form and substance as agreed by the Administrative Agent prior pursuant to the Closing Date and containing projected financial statements for each quarter of such Fiscal YearFirst Lien Loan Documents;
(c) promptly no more than ten (10) Business Days after any request by the Administrative Agent or any Lenderreceipt thereof, copies of any detailed audit reports, final management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower any Loan Party by independent accountants its Registered Public Accounting Firm in connection with the accounts or books of the Borrower Loan Parties or any Subsidiary, or any audit of any of them, including, without limitation, specifying any Internal Control Event and, promptly, after request by the Administrative Agent therefor, updates on the status of any remediation of any such Internal Control Event;
(d) promptly after upon the same are availablefiling thereof, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Loan Parties, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) periodic and special reports and registration statements which any other filings made by Borrower Loan Party may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934 or with any national securities exchange, and (iii) notice of (and, upon the request of in any case not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon the renewal of any insurance policy of the Loan Parties, evidence of insurance reasonably satisfactory to the Collateral Agent, summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party, and as soon as available, but in any event within 30 days after such renewal, a certificate of such insurance coverage;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from any Governmental Authority (including, without limitation, the SEC (or comparable agency in any applicable non-U.S. jurisdiction)) concerning any proceeding with, or investigation or possible investigation or other inquiry by such Governmental Authority regarding financial or other operational results of any Loan Party or any Subsidiary thereof or any other matter which, if adversely determined, could reasonably expected to have a Material Adverse Effect;
(g) promptly following any request of therefor, provide information and documentation reasonably requested by the Administrative Agent or any LenderLender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, copies of all reports and written information to and from the United States Environmental Protection Agencyincluding, or any state or local agency responsible for environmental matterswithout limitation, the United States Occupational Health PATRIOT Act and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;the Beneficial Ownership Regulation; and
(fh) promptly, such additional information regarding the businessbusiness affairs, financial condition or corporate affairs operations of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b6.01(a), Section 6.01(b), Section 6.01(c) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(b); provided that: and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower shall deliver paper copies of posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf at xxx.xxx.xxx or otherwise on an Internet or intranet website, if any, in each case to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given whether sponsored by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(dAgent); provided, that the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Loan Parties hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower Loan Parties or its their Affiliates or the respective securities or any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term The Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower Parties hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders shall either have been identified as being previously or contemporaneously filed with the SEC or be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, ; (3x) by identifying Borrower Materials as being filed with the SEC or marking Borrower Materials “PUBLIC,” the Borrower Loan Parties shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Loan Parties or its their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials identified as being filed with the SEC or marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” Side Information”; and (5z) the Administrative Agent and the Arranger shall be entitled to treat any the Borrower Materials that are not either identified as being filed with the SEC or marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information.”
Appears in 1 contract
Samples: Term Loan Credit Agreement (Barnes & Noble Education, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent (for further distribution to each Lender), in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) not later than 60 days of after the start beginning of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year ending October 31, 2014, an annual business plan and budget of the Borrower and its SubsidiariesSubsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected among other things, pro forma financial statements for each quarter of such Fiscal Yearfiscal year;
(c) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice any material statement or report furnished to any holder of (and, upon the request debt securities of the Administrative Agent, copies of) any other filings made by Borrower Loan Party or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request which debt securities have a principal amount in excess of the Administrative AgentThreshold Amount) pursuant to the terms of any indenture, copies of) loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other information that is provided by Borrower to its shareholders generally;
(e) upon the request clause of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitythis Section 7.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non‑U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) and documents required to be delivered pursuant to Section 7.02(a) or (b) (so long as, in the case of the certificate required by Section 7.02(a), such document is executed by a Responsible Officer) may be delivered electronically in accordance 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 11.02; 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 the Administrative Agent have access (whether a commercial, third‑party website or whether sponsored by the Administrative Agent) or (iii) with respect to the documents required to be delivered pursuant to Section 12.1(b7.02(a) and (b), on which the Borrower sends such documents by electronic mail to the Administrative Agent’s email address set forth on Schedule 11.02; provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its request to the Borrower or the request of any Lender that requests to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 MLPFS may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public non‑public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market‑related activities with respect to such Person’s securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender MLPFS and the Lenders to treat such Borrower Materials as not containing any material non-public non‑public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger MLPFS 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 that is not designated marked as “Public InvestorSide Information.”” Nothing in this Section 7.02 shall modify or limit a Lender’s obligations under Section 11.07 with regard to the maintenance of the confidentiality or other treatment of information.
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal year ending September 26, 2010), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerBorrower (which delivery may, unless the Administrative Agent, or 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);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent promptly, and in any event within ten Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “"Borrower Materials”") by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “"Platform”") and (b) certain of the Lenders (each, a "Public Lender") may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “"PUBLIC,” " the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “"Public Investor,” Side Information;" and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.”" Notwithstanding the foregoing, the parties acknowledge and agree that all financial forecasts provided under this Agreement are not public and do contain material non-public information regardless of any markings.
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate in the form of Exhibit C signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of promptly after the start same are available, copies of each Fiscal Year annual report, proxy or financial statement or other report or written communication sent to the equity owners of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the annual business plan Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Borrower Securities Exchange Act of 1934, and its Subsidiaries, in form and substance as agreed by not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) no later than ten (10) days after Borrower’s or any Subsidiary’s receipt of any Net Cash Proceeds resulting from a Triggering Sale, a Triggering Sale Certificate relating to such Triggering Sale;
(d) no later than ten (10) days after Borrower or any Subsidiary has Reinvested any Reduction Amount, a Reinvestment Certificate describing the amount, date and particulars relating to the Reduction Amount so Reinvested;
(e) to the extent necessary to show compliance with the Fixed Asset Coverage Ratio set forth in Section 7.19, but only to such extent, delivery within the prior 12-month period of one or more domestic fixed asset appraisal(s) by a third party satisfactory to the Administrative Agent;
(f) at the request of the Required Lenders (to include the Administrative Agent), the Borrower will deliver updated appraisals that cover all domestic fixed assets within sixty (60) days of such request;
(g) promptly after upon receipt thereof, copies of all material notices, requests and other documents received by any Loan Party under or pursuant to any Contractual Obligation governing Indebtedness that is outstanding in a principal amount of at least $1,000,000 and, from time to time upon the reasonable request by the Administrative Agent, such information and reports regarding such Contractual Obligation as the Administrative Agent may reasonably request;
(h) promptly after receipt thereof, copies of all Revenue Agent Reports (IRS Form 886), or other written proposals of the IRS, that propose, determine or otherwise set forth positive adjustments to the Federal income tax liability of the affiliated group (within the meaning of Section 1504(a)(1) of the Code) of which the Borrower is a member aggregating $1,000,000 or more; and
(i) promptly, such additional information regarding the business, financial or corporate affairs of Borrower or any of its Subsidiaries as the Administrative Agent, at the request of any Lender, may from time to time reasonably request, which information may include copies of any detailed audit reports, if any, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) 6.01(a), (b), and (bc), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of Imation which Compliance Certificate shall include a calculation of the BorrowerConsolidated Fixed Charge Coverage Ratio calculated as of the end of the most recently ended fiscal month within the reporting period;
(b) within ninety (90) days concurrently with delivery of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter under Section 6.01(a) above, copies of all management letters and other material reports submitted to Borrowers by their accountants in connection with such Fiscal Yearfinancial statements;
(c) at Administrative Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Administrative Agent;
(d) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Imation by independent accountants in connection with the accounts or books of the Borrower Imation or any Subsidiary, or any audit of any of them;
(de) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Imation, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon the request of the Administrative Agent, copies of) any other filings made by Borrower periodic and special reports and registration statements which Imation may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower not otherwise required to its shareholders generally;
(e) upon the request of be delivered to the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitypursuant hereto;
(f) by the 20th day of each month, the Borrower Agent shall deliver to the Administrative Agent (and Administrative Agent shall promptly deliver same to Lenders)
(i) a Borrowing Base Certificate calculating the US Borrowing Base prepared as of the close of business of the previous month, and at such other times as the Administrative Agent may request and (ii) a Borrowing Base Certificate calculating the European Borrowing Base prepared as of the close of business of the previous month, and at such other times as the Administrative Agent may request. All calculations of US Availability and European Availability in any Borrowing Base Certificate shall originally be made by Borrowers and certified by a Responsible Officer, provided that the Administrative Agent may from time to time review and adjust any such calculation (A) to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in any Dominion Account, or otherwise; (B) to adjust advance rates in its Permitted Discretion to reflect changes in dilution, quality, mix and other factors affecting Collateral; and (C) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserves;
(g) the Borrower Agent shall provide to the Administrative Agent, on or before the 20th day of each month, (i) with respect to the US Loan Parties, (A) a detailed aged trial balance of all Accounts as of the end of the preceding month, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, and status reports, (B) inventory reports by location of the US Loan Parties, and (C) such other reports and information as the Administrative Agent may reasonably request, in each case, in form satisfactory to the Administrative Agent and (ii) with respect to the European Borrower, (A) a detailed aged trial balance of all Accounts as of the end of the preceding month, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, and status reports, (B) inventory reports by location of the European Borrower, and (C) such other reports and information as the Administrative Agent may reasonably request, in each case, in form satisfactory to the Administrative Agent. If Accounts in an aggregate face amount of $5,000,000 or more cease to be Eligible Accounts, the Borrower Agent shall notify the Administrative Agent of such occurrence promptly after any Borrower has knowledge thereof and shall identify whether such Accounts are Eligible US Accounts or Eligible European Accounts;
(h) within five days after the end of each month (or such shorter intervals as the Administrative Agent may require in its Permitted Discretion), the Borrower Agent shall have filed the Dutch Supplemental Pledge Agreement, substantially in the form of Exhibit A to the Dutch Notarial Deed of Pledge of Receivables (Undisclosed) with the appropriate tax authorities in the Netherlands, and promptly thereafter, provide to the Administrative Agent evidence that such filing has been made. The Borrower Agent shall have attached to each Dutch Supplemental Pledge Agreement an exhibit specifying the then existing present accounts receivable, all in accordance with the relevant provisions of the Dutch Notarial Deed of Pledge of Receivables (Undisclosed);
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and
(j) promptly, such additional other reports and information regarding the business, (financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, otherwise) as the Administrative Agent or any Lender may reasonably request from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower in connection with any Collateral or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such requestBorrower’s, a certificate of a Responsible Officer of the Borrower listing (i) all applicationsSubsidiary’s or other Loan Party’s financial condition, if any, for Copyrights, Patents corporate affairs or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)business. Documents required to be delivered pursuant to Section 8.1(a) or 6.01(a), (b) or (c) or Section 8.2(d6.02(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band if so delivered, shall be deemed to have been delivered on the date (i) on which Imation posts such documents, or provides a link thereto on Imation’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on Imation’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Imation shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower Imation to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower Imation shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance Imation shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent and each of the Lenders. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Imation with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower Imation or its securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower The Borrowers hereby agrees agree that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower Imation or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Imation Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent for distribution by the Administrative Agent to the Lenders, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery each of the financial statements referred furnished to in Sections 8.1(athe Lenders pursuant to Section 7.01(a) and (b), a duly completed Officer’s written Compliance Certificate signed by a Responsible the Chief Financial Officer of the BorrowerBorrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Each Compliance Certificate furnished pursuant to Section 7.01(a) and (b) above shall also (i) set forth the calculations supporting such statements in respect of Sections 8.11 and 8.15 hereof and (but only at such intervals as such information is required to be furnished to the DOE) those financial ratios required by the DOE with respect to the Borrower and its Subsidiaries on a consolidated basis (or on any other basis then required to be reported to the DOE), including primary reserve, equity, net income and, with respect to each School, 90/10 ratios and (ii) include a summary of actual versus required Cohort Default Rates;
(b) within ninety (90) days of promptly after the start sending or filing thereof, copies of each Fiscal Year financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary to its public stockholders or other public equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Subsidiary with any securities exchange or the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal YearSEC;
(c) promptly after receipt thereof, any request by the Administrative Agent or any Lender, copies of any detailed audit additional written reports, management letters or recommendations submitted to the board other detailed information contained in writing concerning significant aspects of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower any Loan Party’s or any Subsidiary, or any audit of any of them’s operations and financial affairs given to it by its independent public accountants;
(d) promptly after the same are availablereceipt thereof, (i) copies a copy of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request each audit made by any regulatory agency of the Administrative Agent, copies of) any other filings made by books and records of the Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) or of notice of (any material noncompliance with any applicable Law or guideline relating to any Loan Party or any Subsidiary, or its business; and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party, any Subsidiary or any SubsidiarySchool, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b) or Section 8.2(d7.02(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 as “Public InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Lincoln Educational Services Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
Borrower (b) within ninety (90) days of the start of each Fiscal Year of the Borrowerwhich delivery may, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by unless the Administrative Agent prior Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to the Closing Date and containing projected financial statements be an original authentic counterpart thereof for each quarter of such Fiscal Yearall purposes);
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(e) upon promptly after the request of the Administrative Agent or any Lenderfurnishing thereof, copies of all reports and written information any statement or report furnished to and from any holder of debt securities of the United States Environmental Protection Agency, Borrower or any state Subsidiary thereof pursuant to the terms of any indenture, loan or local agency responsible for environmental matters, credit or similar agreement and not otherwise required to be furnished to the United States Occupational Health and Safety Administration, Lenders pursuant to Section 6.01 or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations other clause of Environmental Liabilitythis Section 6.02;
(f) promptly, and in any event within five Business Days after receipt thereof by the Borrower or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of the Borrower or any Subsidiary thereof; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(belectronically, which delivery shall be deemed to have occurred 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website, the SEC website or a website sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Harte Hanks Inc)
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended September 30, 2011), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowerBorrower (which delivery may, unless the Administrative Agent, or 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);
(b) within ninety five (905) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly Business Days after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations reports submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly within five (5) Business Days after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto;
(d) within five (5) Business Days after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generallyclause of this Section 6.02;
(e) upon the request of the Administrative Agent within five (5) Business Days after receipt thereof by any Loan Party or any LenderSubsidiary thereof, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)writing. Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers Arranger will make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that, so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities, (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Athenahealth Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a) 6.01(a), (b), and (bc), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of Imation which Compliance Certificate shall include a calculation of the BorrowerConsolidated Fixed Charge Coverage Ratio calculated as of the end of the most recently ended fiscal month within the reporting period;
(b) within ninety (90concurrently with delivery of financial statements under Section 6.01(a) days above, copies of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower all management letters and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior other material reports submitted to the Closing Date and containing projected Borrowers by their accountants in connection with such financial statements for each quarter of such Fiscal Yearstatements;
(c) at the Administrative Agent’s request, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging, all in form satisfactory to Administrative Agent;
(d) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Imation by independent accountants in connection with the accounts or books of the Borrower Imation or any Subsidiary, or any audit of any of them;
(de) 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 Imation, and copies of all annual, regular, periodic and special reports and registration statements which Imation may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(i) copies within 20 days after the end of Form 10-Q quarterly reports, Form 10-K annual reports, each calendar quarter (and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any at such other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, times as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which request), the Borrower or any of its Subsidiaries is bound; and
(g) upon request by Agent shall deliver to the Administrative Agent (such request not and the Administrative Agent shall promptly deliver same to be made more than once in any calendar yearLenders)
(A) within thirty (30) days a Borrowing Base Certificate calculating the US Borrowing Base prepared as of the close of business of such requestcalendar quarter, and at such other times as the Administrative Agent may request and (B) a certificate of a Responsible Officer Borrowing Base Certificate calculating the European Borrowing Base prepared as of the Borrower listing (i) all applicationsclose of business of such calendar quarter, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and
(ii) all issuances within 20 days after the end of registrations or letters on existing applications for Copyrights, Patents each month (and Trademarks (each at such term other times as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificateAdministrative Agent may request), the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower Agent shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by (and the Administrative Agent or such Lender and (iishall promptly deliver same to Lenders) in the case a calculation of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent US Availability plus Domestic Controlled Cash prepared as of the posting close of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) business of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently month based on the first page thereof, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as calculations set forth in Section 12.11the most recently delivered Borrowing Base Certificate delivered pursuant to clause (i), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Samples: Credit Agreement (Imation Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended October 1, 2010), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer, assistant treasurer or controller of the BorrowerBorrower (which delivery may, unless the Administrative Agent, or 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);
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any reasonable request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or written recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) notice of (and, upon the request of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative AgentAgent pursuant hereto; and
(d) promptly after the furnishing thereof, copies of) of any other filings made by Borrower statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary with thereof pursuant to the SEC concerning material business developmentsterms of any indenture, loan or credit or similar agreement and (iii) notice of (and, upon not otherwise required to be furnished to the request of the Administrative Agent, copies of) Lenders pursuant to Section 6.01 or any other information that is provided by Borrower to its shareholders generally;clause of this Section 6.02; and
(e) upon the request of the Administrative Agent promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any LenderGroup Member, copies of all reports and written information to and each notice or other correspondence received from the United States Environmental Protection Agency, SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;Group Member; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 10.02; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower Administrative Agent shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent, who shall notify each Lender (which may be by facsimile telecopier or electronic mail) the Administrative Agent of the posting of any such documents and and, upon the reasonable request of the Administrative Agent, 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate in form of Exhibit C signed by a Responsible Officer of the BorrowerBorrower and a Responsible Officer of the MLP;
(b) within ninety (90) days promptly after the same are available, copies of each annual report, proxy or financial statement or other report or written communication sent to the equity owners of the start MLP, and copies of each Fiscal Year all annual, regular, periodic and special reports and registration statements which the MLP may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the BorrowerSecurities Exchange Act of 1934, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) promptly after execution thereof, copies of Material Agreements and any request by material amendment thereto;
(d) no later than ten (10) days after any Company’s receipt of any Reduction Amount resulting from a Triggering Sale, a Triggering Sale Certificate relating to such Triggering Sale;
(e) no later than one hundred seventy-five (175) days after any Company’s receipt of any Reduction Amount resulting from a Triggering Sale, a Reinvestment Certificate relating to such Triggering Sale; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party as the Administrative Agent or Agent, at the request of any Lender, may from time to time reasonably request, which information may include copies of any detailed audit reports, if any, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent:
(a) [Reserved];
(b) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b)6.01(b) , a duly completed Officer’s Compliance Certificate signed executed by a Responsible Officer of the BorrowerBorrower Representative;
(bc) within ninety seventy-five (9075) days of the start after end of each Fiscal Year of the BorrowerYear, the annual business plan and budget of the Borrower Loan Parties and its Subsidiariestheir Subsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing among other things, projected financial statements (including, without limitation, consolidated balance sheet of the Loan Parties and their Subsidiaries as at the end of each such Fiscal Quarter, and the related consolidated statements of income or operations, retained earnings, shareholders’ equity and cash flows for each quarter of such Fiscal YearQuarter) for each Fiscal Quarter through the Term Loan Maturity Date;
(cd) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Loan Parties and their Subsidiaries by independent accountants in connection with the accounts or books of the Borrower or any SubsidiaryLoan Parties and their Subsidiaries, or any audit of any of them;
(de) (i) promptly after the same are availableavailable (and in any event within ten (10) days thereof), (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of any Loan Party, and Form 8-K current reportscopies of all annual, regular, periodic and special reports and registration statements which any Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or to a holder of any Indebtedness owed by any Loan Party or any Subsidiary in its capacity as such a holder and not otherwise required to be delivered to the Administrative Agent pursuant hereto, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning all material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety AdministrationAdministration or any successor agencies or authorities concerning environmental, health or safety matters, and (iii) all material reports and written information to and from any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities authorities concerning allegations of Environmental Liability;environmental, health or safety matters; and
(f) promptlypromptly (and in any event within five (5) days after a request therefor), such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Allion Healthcare Inc)
Certificates; Other Information. Deliver to the Administrative Agent, for delivery to each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of the Borrower, and Form 8-K current reportscopies of all annual, (ii) notice of (andregular, upon periodic and special reports and registration statements which the request of the Administrative Agent, copies of) any other filings made by Borrower may file or any Subsidiary be required to file with the SEC concerning material business developmentsunder Section 13 or 15(d) of the Securities Exchange Act of 1934, and (iii) notice of (and, upon the request of not otherwise required to be delivered to the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(ed) upon promptly after the request of Borrower has notified the Administrative Agent or of any Lenderintention by the Borrower to treat the Loans and/or Letters of Credit and related transactions as being a "reportable transaction" (within the meaning of Treasury Regulation Section 1.6011-4), copies a duly completed copy of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, IRS Form 8886 or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;form; and
(fe) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by request.
(i) Requirement of Law or (ii) a contractual obligation to which the Borrower or if any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such requestLender so requests, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent by electronic mail electronic versions (i.e.and each of the Lenders. Except for such Compliance Certificates, soft copies) of such documents. The the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(a7.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety sixty (9060) days of the start beginning of each Fiscal Year of fiscal year, beginning with the Borrowerfiscal year ending December 31, the 2017, an annual business plan forecast of the Borrower and its SubsidiariesSubsidiaries containing, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected among other things, financial statements on a Pro Forma Basis for each fiscal quarter of such Fiscal Yearfiscal year;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after any written request by the Administrative Agent or any Lenderthe Required Lenders, copies of any detailed audit reportsfinal management letters, management exception reports or similar letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are availablefurnishing thereof, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) any notice of (and, upon the request of the Administrative Agent, copies of) default sent to or received by any other filings made by Borrower Loan Party or any Subsidiary thereof under or in connection with the SEC concerning material business developmentsany indenture, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent loan or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, credit or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liabilitysimilar agreement;
(f) within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or possible material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, Subsidiary as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(gh) upon request by concurrently with the Administrative Agent (such request not delivery of the financial statements referred to be made more than once in any calendar year) within thirty (30) days of such requestSection 7.01(a), a certificate of a Responsible Officer of the Borrower listing (i) all applicationsupdating Schedules 6.13, if any6.17, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement6.20(a) made with the United States Copyright Office or the United States Patent and Trademark Office 6.20(b) since the date of the prior certificate update (or, in the case of the first such certificateupdate, the Closing Date), (ii) all issuances attaching the insurance binder or other evidence of registrations insurance for any insurance coverage of any Loan Party or letters on existing applications for Copyrightsany Subsidiary that was renewed, Patents and Trademarks (each replaced or modified during the period covered by such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)financial statements, and (iii) attaching a schedule listing all material Trademark Licenses, Copyright Licenses Investments made pursuant to Sections 8.02(d)(ii) and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date8.02(e). Documents required to be delivered pursuant to Section 8.1(a7.01(a) or (b7.01(b) or Section 8.2(d7.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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 11.02; 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 the Administrative Agent have access (whether a commercial, third party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for 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 Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1111.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,Side Information;” and (5z) the Administrative Agent and the Arranger 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 as “Public InvestorSide Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Syntel Inc)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) (x) concurrently with the delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower, (i) certifying among other things, the Available Amount, to the extent used during such period, and (ii) including a list that identifies each Immaterial Subsidiary as of the date of delivery of such Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date or the date of the last such list and (y) concurrently with the delivery of the financial statements referred to Section 6.01(a), a duly completed Perfection Certificate Supplement signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Restricted Subsidiary, or any audit of any of them;
(dc) promptly after the same are available, notice of copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. Notwithstanding the foregoing, in the event that the Borrower timely files such filings in accordance with the requirements of the SEC and such filings are made publicly available through EXXXX, the Borrower shall have no delivery requirement under this Section 6.02(c);
(d) promptly after the furnishing thereof, copies of any notice of default or breach under any material debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement with an outstanding principal amount in excess of $10,000,000;
(e) as soon as practicable, and in any event within ten (10) days after the last of the issuance, filing or receipt thereof, the Borrower shall furnish (i) copies any order or notice of Form 10the FCC, any Governmental Authority or a court of competent jurisdiction which designates any Station License, or any application for renewal of license therefor, for a hearing or which refuses renewal or extension of, or revokes or suspends the authority of Borrower or any of its FCC Subsidiaries to operate a full-Q quarterly reportsservice radio or full-service television Station or the authority to broadcast of any full-service radio or full-service television station for which the Borrower or any License Subsidiary provides services under a Local Marketing, Form 10-K annual reportsTime Brokerage, and Form 8-K current reportsor Joint Sales Agreement, (ii) notice any Notice of (andViolation, upon the request Notice of Apparent Liability for Forfeiture or Order to Show Cause related to a violation of the Administrative AgentCommunications Laws, copies of) issued by the FCC or other Governmental Authority or any material complaint filed with the FCC or other filings made Governmental Authority which Borrower or a License Subsidiary is notified about by the FCC or the other Governmental Authority, in each case with respect to Borrower or any Subsidiary with the SEC concerning material business developmentsof its License Subsidiaries, and (iii) a copy of any notice of (and, upon or application by the request of the Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lenderof its License Subsidiaries requesting authority to cease broadcasting for a period of more than thirty (30) days, copies except as a result of all reports and written information to and from the United States Environmental Protection Agencya Force Majeure Effect, on any full-service radio or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;full-service television Station; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is boundrequest; and
(g) upon request as soon as practicable, and in any event within 30 days of its due date for filing with the FCC, a duplicate copy of each biennial FCC Form 323 (or any comparable form which may be substituted therefor by the Administrative Agent (such request not to be made more than once in any calendar yearFCC) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made filed with the United States Copyright Office FCC with respect to each Station owned by Borrower or the United States Patent and Trademark Office since the date any of the prior certificate (orits Subsidiaries. Unless made publicly available as set forth in Section 6.01, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents documents required to be delivered pursuant to Section 8.1(a6.01(a) or (b) or Section 8.2(d6.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically in accordance with Section 12.1(band 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; 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 the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify the Administrative Agent and each Lender (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for deliveryBorrower, and each Lender shall be solely responsible for 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 may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf at the direction of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks, Syndtrak, ClearPar, or another substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities) (each, a “Public Lender”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, Lenders and that (2w) 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or any of its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.07), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” Side Information”; and (5z) the Administrative Agent and the Arranger 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 InvestorSide Information.” Notwithstanding anything in this paragraph, the Borrower shall be under no obligation to mxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver Furnish to the Administrative Agent, in form and detail acceptable to the Agent, with sufficient copies for each Lender, the following documents:
(ai) On the fifteenth (15th) day of each calendar month, evidence satisfactory to the Agent that the Borrower is in compliance with the minimum Cash covenant in Section 7.9(c)(i) hereof, (ii) concurrently with the delivery of the financial statements referred described in Section 7.1(b) for each month end, a Covenant Compliance Report with respect to the Liquidity Ratio covenant in Section 7.9(b) hereof and the minimum Cash covenant in Section 7.9(c)(ii) hereof, duly executed by a Responsible Officer of the Borrower, and (iii) concurrently with the delivery of the financial statements described in Sections 8.1(a7.1(a) for each Fiscal Year end and concurrently with the delivery of the financial statements described in Sections 7.1(b) for each month end that is also a fiscal quarter end (bother than the last fiscal quarter of the applicable Fiscal Year), a Covenant Compliance Report duly completed Officer’s Compliance executed by a Responsible Officer of the Borrower.
(b) Within thirty (30) days after and as of the most recent month-end or more frequently as reasonably requested by the Agent or the Majority Revolving Credit Lenders, a Borrowing Base Certificate signed executed by a Responsible Officer of the Borrower;
(bc) Promptly upon receipt thereof, copies of all significant reports submitted by the Credit Parties’ firm(s) of certified public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Credit Parties made by such accountants, including any comment letter submitted by such accountants to management in connection with their services;
(d) Any financial reports, statements, press releases, other material information or written notices delivered to the holders of the Subordinated Debt pursuant to any applicable Subordinated Debt Documents (to the extent not otherwise required hereunder), as and when delivered to such Persons;
(e) Within sixty (60) days after the end of each Fiscal Year, projections for the Credit Parties for the next succeeding Fiscal Year, on a quarterly basis and for the following Fiscal Year on an annual basis, including a balance sheet, as at the end of each relevant period and for the period commencing at the beginning of the Fiscal Year and ending on the last day of such relevant period, such projections certified by a Responsible Officer of the Borrower as being based on reasonable estimates and assumptions taking into account all facts and information known (or reasonably available to any Credit Party) by such Responsible Officer of the Borrower;
(f) Within thirty (30) days after and as of the end of each month, including the last month of each Fiscal Year, or more frequently as requested by the Agent or the Majority Revolving Credit Lenders, the monthly aging of the accounts receivable and accounts payable of the Credit Parties;
(i) As soon as available, and in any event within forty five (45) days after the end of each fiscal quarter of the Borrower (except the last quarter of each Fiscal Year), a copy of the 10-Q of the Borrower filed with the SEC, (ii) as soon as available, and in any event within ninety (90) days of after the start end of each Fiscal Year of the Borrower, a copy of the annual business plan 10-K of the Borrower filed with the SEC, (iii) as soon as available following the filing thereof, a copy of any 8-K of the Borrower filed with the SEC, and its Subsidiaries(iv) as soon as available following the filing thereof, in form and substance as agreed by any proxy or registration statements filed with the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal YearSEC;
(ch) promptly after Any additional information as required by any request Loan Document, and such additional schedules, certificates and reports respecting all or any of the Collateral, the items or amounts received by the Administrative Agent Credit Parties in full or partial payment thereof, and any Lender, copies goods (the sale or lease of which shall have given rise to any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board Collateral) possession of directors) which has been obtained by the Credit Parties, all to such extent as the Agent may reasonably request from time to time, any such schedule, certificate or report to be certified as true and correct in all material respects by a Responsible Officer of the Borrower by independent accountants applicable Credit Party and shall be in connection with such form and detail as the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;Agent may reasonably specify; and
(d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice of (and, upon the request of the Administrative Agent, copies of) any Such additional financial and/or other information that is provided by Borrower to its shareholders generally;
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of request, promptly following such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders, (2) 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, (3) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11), (4) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,” and (5) the Administrative Agent and the Arranger 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 Investor.”
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
Certificates; Other Information. Deliver to Administrative Agent a sufficient number of copies for delivery to each Lender of the following, in form and detail satisfactory to Administrative AgentAgent in its reasonable discretion and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 8.1(aSection 6.1(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to in Section 6.1(a) and (bSection 6.1(b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days of the start of each Fiscal Year of the Borrower, the annual business plan of the Borrower and its Subsidiaries, in form and substance as agreed by the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Year;
(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Borrower in the Borrower ordinary course and by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(d) as soon as available, but in no event later than sixty (60) days after the end of each fiscal year of Borrower, annual projections for the following two (2) fiscal years from (i) Borrower on a consolidated basis and (ii) from Guarantor on a consolidated basis;
(e) [Reserved];
(f) promptly after the same are available, (i) copies of Form 10-Q quarterly reportseach annual report, Form 10-K annual reportsproxy or financial statement or other report or communication sent to the stockholders of Borrower, and Form 8-K current reportscopies of all annual, (iiregular, periodic and special reports and registration statements which Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) notice of (and, upon the request of the Administrative Agent, copies of) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developmentsSecurities Exchange Act of 1934, and (iii) notice of (and, upon the request of the not otherwise required to be delivered to Administrative Agent, copies of) any other information that is provided by Borrower to its shareholders generallyAgent pursuant hereto;
(eg) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability[Reserved];
(fh) promptlypromptly upon request, such additional financial information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may request from time to time reasonably request or more frequent delivery of financial information which is delivered periodically pursuant to the extent the confidentiality this Section 6.2 (such as, but not limited to, schedules of such information is not required by account receivable agings and inventory reports);
(i) Requirement of Law or as soon as available, but in no event later than ninety (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (3090) days after the end of such requesteach fiscal year of Borrower, a certificate schedule of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date)account receivable agings. Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for 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 Lenders L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the Borrower hereby agrees that (1w) it will use commercially reasonable efforts to identify that portion of the all Borrower Materials that may are to be distributed made available to the Public Lenders, (2) all such Borrower Materials Lenders 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, ; (3x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.1110.8), ; (4y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor,;” and (5z) the Administrative Agent and the Arranger 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 Investor”.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) concurrently with no later than five (5) days after the earlier of (i) the actual delivery of the financial statements referred to in Sections 8.1(a6.01(a) and (b) and (ii) the date such financial statements are required to be delivered pursuant to Sections 6.01(a) and (b), a duly completed Officer’s Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) within ninety (90) days promptly after the same are publicly available, copies of the start of each Fiscal Year of the Borrowerall annual, regular, periodic and special reports and registration statements which Holdings, the annual business plan of Borrower or any Restricted Subsidiary files with the Borrower and its SubsidiariesSEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) and substance as agreed by in any case not otherwise required to be delivered to the Administrative Agent prior to the Closing Date and containing projected financial statements for each quarter of such Fiscal Yearpursuant hereto;
(c) promptly after any request by the Administrative Agent or any Lenderfurnishing thereof, copies of any detailed audit reports, management letters material requests or recommendations submitted material notices received by any Loan Party (other than in the ordinary course of business) or material statements or material reports furnished to the board any holder of directors debt securities (or the audit committee of the board of directors) of the Borrower by independent accountants other than in connection with the accounts any board observer rights) of any Loan Party or books of the Borrower or any Subsidiary, or any audit of any of themits Restricted Subsidiaries pursuant to the terms of any Senior Secured Notes Documents or any Junior Financing Documentation with a principal amount in excess of the Threshold Amount and copies of any notices of default pursuant to the ABL Credit Agreement and, in each case, any Permitted Refinancing thereof, and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;
(d) promptly after together with the same are availabledelivery of each Compliance Certificate pursuant to Section 6.02(a), (i) copies in the case of Form 10-Q quarterly reportsannual Compliance Certificates only, Form 10-K annual reports, a report setting forth the information required by sections of the Perfection Certificate describing the legal name and Form 8-K current reportsthe jurisdiction of formation of each Loan Party and the location of the chief executive office of each Loan Party or confirming that there has been no change in such information since the later of the Closing Date or the date of the last such report, (ii) notice a description of (andeach event, upon condition or circumstance during the request of the Administrative Agent, copies oflast fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) any other filings made by Borrower or any Subsidiary with the SEC concerning material business developments, and (iii) notice a list of (and, upon the request each Subsidiary of the Administrative AgentBorrower that identifies each Subsidiary as a Restricted Subsidiary, copies of) any other an Unrestricted Subsidiary or an Excluded Subsidiary as of the date of delivery of such Compliance Certificate or confirmation that there has been no change in such information that is provided by Borrower to its shareholders generally;since the later of the Closing Date or the date of the last such list; and
(e) upon the request of the Administrative Agent or any Lender, copies of all reports and written information to and from the United States Environmental Protection Agency, or any state or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration, or any state or local agency responsible for health and safety matters, or any successor agencies or Governmental Authorities concerning allegations of Environmental Liability;
(f) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrower Loan Parties or any Subsidiaryof their respective Restricted Subsidiaries, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request to the extent the confidentiality of such information is not required by (i) Requirement of Law or (ii) a contractual obligation to which the Borrower or any of its Subsidiaries is bound; and
(g) upon request by the Administrative Agent (such request not to be made more than once in any calendar year) within thirty (30) days of such request, a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made with the United States Copyright Office or the United States Patent and Trademark Office since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) by the United States Copyright Office or the United States Patent and Trademark Office received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(d) may be delivered electronically in accordance with Section 12.1(b); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) in the case of Section 8.2(d), the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and 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 or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may 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”). At any time after the making of an Incremental Term Loan pursuant to Section 5.13 or upon notice by the Administrative Agent to the Borrower that any Lender is a Public Lender, the The Borrower hereby agrees that (1) it will use commercially reasonable efforts to identify that portion of the make all Borrower Materials that may the Borrower intends to be distributed made available to the Public Lenders, (2) all such Borrower Materials shall be Lenders clearly and conspicuously marked designated as “PUBLIC.” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (3) by marking By designating Borrower Materials as “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Lender and the Lenders to treat authorizes such Borrower Materials as to be made available to a portion of the Platform designated “Public Investor,” which is intended to contain only information that is either publicly available or not containing any material non-public information (although though it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal federal and state securities laws (providedlaws. Notwithstanding the foregoing, however, that the Borrower shall not be under any obligation to the extent such xxxx any Borrower Materials constitute Information, they shall be treated as set forth in Section 12.11)“PUBLIC.” The Borrower agrees that (i) any Loan Documents, (4ii) all any financial statements delivered pursuant to Section 6.01 (excluding, for the avoidance of doubt, 6.01(c)) and (iii) any Compliance Certificates delivered pursuant to Section 6.02(a) and (iv) notices delivered pursuant to Section 6.03(a) will be deemed to be “public-side” Borrower Materials marked “PUBLIC” are permitted to and may be made available to Public Lenders. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to communications that are not made available through a the “Public Side Information” portion of the Platform designated “Public Investor,” and (5) that may contain material non-public information with respect to the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only or its securities for posting on a portion purposes of the Platform not designated “Public InvestorUnited States federal or state securities laws.”
Appears in 1 contract
Samples: Credit Agreement (DJO Finance LLC)
