Certificates; Other Information. Deliver to the Administrative Agent: (a) Intentionally Omitted; (b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrowers; (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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; (e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency); (f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product; (g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and (h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: Senior Secured Credit Agreement (Aimco Properties L.P.), Senior Secured Credit Agreement (Aimco Properties L.P.)
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), to the extent obtainable with commercially reasonable efforts, 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 (which certificate may be limited to the extent required by applicable accounting rules or guidelines);
(b) concurrently with not later than five Business Days after the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) 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;
(f) concurrently with the delivery of each Compliance Certificate referred to in clause (b) of this Section 6.02, a list of the Immaterial Subsidiaries determined as of the last day of the fiscal quarter of the Borrower to which such Compliance Certificate relates;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except Loan Party or any Subsidiary thereof, to the extent prohibited permitted by confidentiality obligations required by the SEC or any comparable agency)Law;
(fh) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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;
(A) upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by the Borrower, any Subsidiary or any ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan; (iii) all notices received by the Borrower, any Subsidiary or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such additional information other documents or governmental reports or filings relating to be any Plan as the Administrative Agent shall reasonably request; and (B) promptly following any request therefor, copies of (i) any documents described in Section 101(k) of ERISA that the Borrower, any Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that the Borrower, any Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan have not been requested, the applicable entity shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(j) within 60 days after the beginning of each fiscal year of the Borrower, a budget for the Borrower in form and detail reasonably satisfactory to the Administrative Agent; provided that the Borrowers shall not be required , but to provide any information include balance sheets, statements of income and sources and uses of cash, for (i) each fiscal quarter of such fiscal year prepared in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or reasonable detail and (ii) each of the two fiscal years of the Borrower immediately following such fiscal year, prepared in summary form, in each case, with appropriate presentation and discussion of the principal assumptions upon which such budgets are based, accompanied by the statement of the chief executive officer, chief financial officer, treasurer or controller of the Borrower to the effect that, to the good faith belief of such officer, the budget is subject to attorney-client privilege or constitutes attorney work producta reasonable estimate for the periods covered thereby and, promptly when available, any significant revisions of such budget;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(hk) concurrently with the delivery of each Compliance Certificate referenced in clause (b) of this Section 6.02, a Perfection Certificate Supplement (or a certificate confirming that there has been no change in information since the date of the Perfection Certificate or latest Perfection Certificate Supplement); and
(l) to the extent the Borrower has one or more Subsidiaries that have been designated as Unrestricted Subsidiaries in accordance with Section 6.15 at such time, concurrently with the delivery of consolidated financial statements referred to in Sections 6.01(a) and (b), the REIT’s related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requirestatements. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s public website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its that makes a written request to the Borrowers 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) except with respect to current reports on Form 8-K. Except for such Compliance Certificates, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Valvoline Inc), Credit Agreement (Ashland Inc.)
Certificates; Other Information. Deliver The Borrower will deliver to the Administrative AgentLender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a5.01(a) and (b), a duly completed Compliance Certificate certificate signed by a Responsible Officer of the BorrowersBorrower 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;
(cb) promptly from and after any request by the Administrative Agent or any LenderSpin Effective Date, 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of the REITSeaport Entertainment, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which the REIT registration statements that Seaport Entertainment or any Loan Party may file or be required to file with the SEC under Section 13 or 15(d) any Governmental Authority succeeding to any or all of the Securities and Exchange Actfunctions of the SEC, or with any national securities exchange, and not otherwise required to be delivered pursuant hereto;
(c) as soon as available, and in any event within 90 days after the end of each fiscal year of the Borrower (commencing with the first fiscal year ending after the Spin Effective Date), a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet of the Loan Parties as of the end of each fiscal quarter of such fiscal year, the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto), which shall be accompanied by a certificate of a Responsible Officer of the Borrower stating that such projections are based on reasonable estimates, information and assumptions and that such Responsible Officer has no reason to believe that such projections are incorrect or misleading in any material respect;
(d) promptly after the furnishing thereof, copies of any material request or notice received by any Loan Party, or any statement or report furnished by any Loan Party to any holder of debt securities of any Loan Party, pursuant to the Administrative Agent terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished pursuant hereto;
(e) promptly, and in any event within five (5) Business Days promptly after receipt thereof by Seaport Entertainment or any BorrowerLoan Party, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Seaport Entertainment or any comparable agency)Loan Party;
(f) promptlypromptly 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 Seaport Entertainment or any Loan Party by independent accountants in connection with the accounts or books of Seaport Entertainment or any Loan Party, or any audit of any of them as the Lender may from time to time reasonably request; and
(g) promptly following any request therefor, (i) such additional other information regarding the operations, business, properties, liabilities (actual or contingent), condition (financial or corporate affairs otherwise) or prospects of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a5.01(a) or (b) or Section 6.02(d5.02(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto materials are publicly available as posted on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 Electronic Data Gathering, Analysis and Retrieval system (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative AgentXXXXX); or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet or intranet website, if any, to which each the Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX websitehas access; provided that: (iA) upon written request by the Borrowers Lender, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (iiB) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites and provide to the Lender by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(belectronic versions (i.e., soft copies) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Seaport Entertainment Group Inc.), Credit Agreement (Seaport Entertainment 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) Intentionally Omittedconcurrently 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 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(a7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(c) at least 60 days after the end 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 the next fiscal year (it being understood that such budget may not include any stock-based expenses of the Borrower and its Subsidiaries);
(d) promptly after any request by the Administrative Agent or any Lender, 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;
(e) 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, Debt Issuances, Equity Issuances and Acquisitions, in any one instance exceeding the Threshold Amount, that occurred during the period covered by such financial statements;
(f) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(dg) promptly after the same are availablefurnishing thereof, copies of each annual report, proxy or financial any statement or other report furnished to any holder of debt securities of any Loan Party or communication sent any Subsidiary thereof pursuant to the stockholders terms of the REITany indenture, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file loan or be required to file with the SEC under Section 13 credit or 15(d) of the Securities and Exchange Act, similar agreement and not otherwise required to be delivered furnished to the Administrative Agent Lenders pursuant heretoto Section 7.01 or any other clause of this Section 7.02;
(eh) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(fi) promptly upon the consummation of any PILOT Transaction, copies of the documentation governing such PILOT Transaction; and
(j) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a7.01(a) or (b) or Section 6.02(d) 7.02 (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided other than any documents filed with the SEC that such notices may be provided by commercial third-party websites by electronic mail at are publicly available on the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmissionSEC’s Internet website. 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 Borrowers Borrower with any such request for delivery by a Lender for deliveryLender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers MLPFS will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers MLPFS and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers MLPFS shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Wright Medical Group Inc), Credit Agreement (Wright Medical Group Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) Intentionally Omitted;
no later than five (b5) concurrently with days after the delivery of the financial statements referred to in Sections 6.01(a) (but only with respect to fiscal years ending on or after February 1, 2014) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief financial officer of the BorrowersBorrower;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are publicly available, copies of each annual reportall annual, regular, periodic and special reports, proxy statements and registration statements which Holdings or financial statement the Borrower or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file any Restricted Subsidiary files with the SEC under Section 13 or 15(d) of with any Governmental Authority that may be substituted therefor or with any national securities exchange, as the Securities and Exchange Actcase 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 in any case not otherwise required to be delivered to the Administrative Agent pursuant heretoto any other clause of this Section 6.02;
(ec) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each any material notice statements or other material correspondence received from the SEC (or comparable agency in reports furnished to any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results holder of any Borrower (except 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 extent prohibited by confidentiality obligations terms of the ABL Credit Agreement or the Senior Notes Indenture, in each case, so long as the aggregate outstanding principal amount thereunder is greater than the Threshold Amount and not otherwise required by to be furnished to the SEC or Administrative Agent pursuant to any comparable agency)other clause of this Section 6.02;
(fd) together with the delivery of the financial statements pursuant to Section 6.01(a) (but only with respect to fiscal years ending after February 1, 2014) and the related Compliance Certificate pursuant to Section 6.02(a), (i) a report setting forth the information required by Section 3.03(c) of the Security Agreement (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 covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.03(b) and (iii) 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 Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date and the date of the last such list; and
(e) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers any Loan Party 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 on its own behalf or on behalf of any Lender reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC6.02(c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet IntraLinks/IntraAgency or intranet 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), including the SEC’s XXXXX website; provided that: (i) upon written request by the Borrowers Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers with any such request by a Lender 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate (including, if the Revolving Facility Test Condition was applicable as of the date such financial statements, showing the calculation of the financial covenant set forth in Section 7.11) signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(cb) promptly after any request by the Administrative Agent or any Lenderthe Required Lenders 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Restricted 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 shareholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and whether or not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except ; provided that to the extent prohibited 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 Borrower notifies the Administrative Agent (by confidentiality obligations required by facsimile or electronic mail) of the filing with the SEC or of any comparable agency);such documents; and
(fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender the Required Lenders, through the Administrative Agent, may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 (i1) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii2) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) containing any MNPI with respect to the Borrowers 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and 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 (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Post Holdings, Inc.), Credit Agreement (Post Holdings, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) Intentionally Omitted;
no later than five (b5) concurrently with days after the actual delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower Representative;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are publicly available, copies of each annual reportall annual, proxy or financial statement or other report or communication sent to the stockholders of the REITregular, periodic and copies of all quarterly special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT may file or be required to file any Loan Party files with the SEC under Section 13 or 15(dwith 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) of the Securities and Exchange Act, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto; provided that notwithstanding the foregoing, the obligations in this Section 6.02(b) may be satisfied so long as such information is publicly available on the SEC’s XXXXX website;
(ec) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each any material notice requests or material notices received by any Loan Party (other than in the ordinary course of business) or material correspondence received from the SEC statements or material reports furnished to any holder of debt securities (or comparable agency other than in connection with any applicable non-U.S. jurisdictionboard observer rights) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Borrower (except Loan Party pursuant to the extent prohibited by confidentiality obligations terms of any Junior Financing Documentation, if any, and any Permitted Refinancing thereof, in each case in a principal amount in excess of the Threshold Amount, and not otherwise required by to be furnished to the SEC or Lenders pursuant to any comparable agency)other clause of this Section 6.02;
(fd) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates only, a report setting forth the legal name and the 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 delivery of the last annual Compliance Certificate to the Administrative Agent and (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 2.03(b); and
(e) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers or any SubsidiaryLoan Parties, 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinksDebtdomain, SyndTrak Roadshow Access (if applicable) 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 Borrowers and the Subsidiary Guarantors or their respective securities) (each, a “Public Lender”). The At the request of the Lead Arrangers, the Borrowers hereby agree that (w) to make all such Borrower Materials (other than SEC Reports) that are the Borrowers intend to be made available to Public Lenders shall be clearly and conspicuously marked designated as “PUBLIC” which, at a minimum, shall mean that the word ”. By designating Borrower Materials as “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat authorize such Borrower Materials as either to be made available to a portion of the Platform designated “Public Investor,” which is intended to contain only information that is publicly available information or not material information (although though it may be sensitive and proprietary) with respect to the Borrowers and the Subsidiary Guarantors or their respective securities for purposes of United States federal and state securities laws or is of a type that would be publicly available if the Borrowers or the Subsidiary Guarantors were a public reporting company (in each case, as reasonably determined by the Borrower Representative). Notwithstanding the foregoing, the Borrowers shall not be under any obligation to xxxx any Borrower Materials “PUBLIC”. The Borrowers agree that (i) any Loan Documents, (ii) any financial statements delivered pursuant to Section 6.01 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 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 the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrowers or their securities for purposes of United States Federal and federal or state securities laws (provided, however, that to laws. The Platform is provided “as is” and “as available.” The Agent-Related Persons do not warrant the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion adequacy of the Platform designated “Public Investor;” and (z) Platform. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent-Related Person in connection with the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public InvestorPlatform.”
Appears in 2 contracts
Samples: Credit Agreement (GIC Private LTD), Credit Agreement (Blackstone Holdings III L.P.)
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersREIT (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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders or other equityholders of the REIT, the Operating Partnership or the Borrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT 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 with any national securities exchange, and Exchange Actin any case not otherwise required to be delivered pursuant hereto;
(c) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of Recourse Indebtedness of any Loan Party pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be delivered furnished pursuant to the Administrative Agent pursuant heretoSection 6.01 or any other clause of this Section 6.02;
(ed) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower Loan Party;
(except to e) promptly after the extent prohibited assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by confidentiality obligations required by the SEC any Loan Party or any comparable agency)of its Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(f) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), or more frequently if requested by the Administrative Agent upon the occurrence and during the continuance of a Default, an Availability Certificate, together with a calculation (certified by a Responsible Officer of the Borrower) of (i) the aggregate Investment Property Net Operating Income from Eligible Investment Properties that are lodging, cinema, self-storage or other properties that are not office, retail or industrial properties as a percentage of the aggregate Investment Property Net Operating Income of all Eligible Investment Properties, (ii) the Investment Property Net Operating Income of each Eligible Investment Property as a percentage of the aggregate Investment Property Net Operating Income of all Eligible Investment Properties, (iii) the Investment Property Net Operating Income from Eligible Investment Properties subject to Eligible Ground Leases as a percentage of the aggregate Investment Property Net Operating Income of all Eligible Investment Properties, (iv) the Investment Property Net Operating Income from Eligible Investment Properties located outside of the United States or Canada as a percentage of the aggregate Investment Property Net Operating Income of all Eligible Investment Properties, (v) Aggregate Capped Value and (vi) the percentage of the aggregate occupancy for all Investment Properties included in the Borrowing Pool (determined on a percentage square feet occupied basis); and
(g) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 REIT posts such documents, or provide provides a link thereto on the Borrowers’ REIT’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers REIT shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers REIT to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers REIT shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers Borrower and each Lender Parent Guarantor hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers any Loan Party hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers REIT or their 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 “. Each of the Borrower and each Parent Guarantor hereby agrees that it will identify that portion of the Borrower Materials that may be distributed to the Public Lender”). The Borrowers hereby agree Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Loan Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers any Loan Party or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Corporate Property Associates 16 Global Inc), Credit Agreement (Corporate Property Associates 16 Global Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes and which Compliance Certificate need not include financial ratio calculations unless such calculations are required under Section 7.11 or necessary for determining compliance with any financial ratio requirement set forth herein or in any Loan Document); provided that, for the avoidance of doubt, no calculation of financial ratios shall be required in a Compliance Certificate in connection with any incurrence test unless specifically set forth elsewhere herein;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file file, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptlypromptly after the furnishing thereof, copies of 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 any Indebtedness of any Loan Party or of any of its Subsidiaries in a principal amount greater than the Threshold Amount and in not otherwise required to be furnished to the Lenders pursuant to any event within five other clause of this Section 6.02;
(5d) Business Days promptly after the receipt thereof by any BorrowerLoan Party or any of its Subsidiaries, 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 material investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agencyof its Subsidiaries;
(e) reasonably promptly after the assertion or occurrence thereof, notice of any action arising under any Environmental Law or otherwise relating to any Hazardous Material against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) a report supplementing Schedule 5.16 (in connection with the delivery of the annual financial statements only) and Schedule 5.08(b) hereto, including, in the case of supplements to Schedule 5.08(b), an identification of all Material Real Property disposed of by any Loan Party 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 (if available), county or other relevant jurisdiction, state and record owner) and (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);
(fg) copies of any notice of default under, and any material amendment, supplement, waiver or other modification of, the Second Lien Credit Agreement;
(h) promptly upon receipt 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 by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; and
(i) promptly, such additional information regarding the business, legal, financial or corporate affairs or operations of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender the Collateral Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or 6.01 and Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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. Notwithstanding the foregoing and anything herein to the contrary, to the extent that a direct or indirect parent of the Borrower becomes a public company that files periodic reports with the SEC in accordance with Section 13 or 15(d) of the Exchange Act, the documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(b) shall be deemed to have been delivered on the date the Forms 10-K (in the case of Sections 6.01(a) and 6.02(b)), 10-Q (in the case of Sections 6.01(b) and 6.02(b)) or 8-K (in the case of Section 6.02(b)) are filed with the SEC. The Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and Lenders, the L/C Issuers and the Collateral Agent materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower and its Affiliates, or their 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”). The Borrowers Borrower hereby agree agrees that it will identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Collateral Agent, the Arrangers, the L/C Issuers 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 Borrowers or Borrower, its Subsidiaries and their respective securities for purposes of United States Federal federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information.”” Each of Holdings and the Borrower hereby (i) acknowledges and agrees that no Borrower Materials delivered pursuant to Section 6.01(a), 6.01(b) or 6.02(a) shall contain any material non-public information with respect to Holdings, the Borrower, its Subsidiaries and their respective securities for purposes of United States federal and state securities laws and (ii) authorizes the Administrative Agent, the Collateral Agent, the Arrangers, the L/C Issuers and the Lenders to treat all Borrower Materials delivered pursuant to Section 6.01(a), 6.01(b) or 6.02(a) as not containing any material non-public information with respect to Holdings, the Borrower, its Subsidiaries and their respective securities for purposes of United States federal and state securities Laws and as suitable for distribution to Public Lenders.
Appears in 2 contracts
Samples: First Lien Credit Agreement (TGPX Holdings I LLC), First Lien Credit Agreement (TGPX Holdings I LLC)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omittedconcurrently 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 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Financial Officer of the BorrowersUS Borrower (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);
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, 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 stockholders, partners or members (or the equivalent of the REITany thereof) of any Loan Party, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT either Borrower or any of its Subsidiaries may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Restricted Subsidiary pursuant to the terms of any 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 not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) as soon as available, but in any event within 30 days after each annual renewal of the applicable insurance policies, a certificate summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Borrower and the Restricted Subsidiaries and such additional information regarding such insurance coverage as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Restricted 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 material investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Restricted Subsidiary;
(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 the Restricted Subsidiaries with any Environmental Law or Environmental Permit or any action, investigation or proceeding relating to Hazardous Materials that could reasonably be expected to have a Material Adverse Effect;
(i) promptly and in any event within five Business Days after receipt thereof by either Borrower or any Restricted Subsidiary, a copy of any notice, summons, citation, proceeding or order received from any Governmental Authority concerning the regulation of any portion of the Business that could reasonably be expected to have a Material Adverse Effect;
(j) if the US Borrower elects to have a Specified Acquisition Period apply with respect to a Specified Acquisition, written notice of such election (or of the applicable Specified Acquisition) at least 10 days (or such lesser time as the Administrative Agent may agree) prior to the date of delivery of the first Compliance Certificate that evidences the existence of such Specified Acquisition Period; and
(k) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers any Loan Party 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 US Borrower posts such documents, or provide provides a link thereto on the Borrowers’ US Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ US 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmissioncopies. 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 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, SyndTrak 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 either Borrower or its respective Affiliates, or the Borrowers or their 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”). The Borrowers Each Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”word
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (USD Partners LP)
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower (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);
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(gd) promptly after the occurrence furnishing thereof, notice of the failure of the REIT to maintain REIT Status or copies of any existing Subsidiary statement or report furnished to any holder of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery debt securities of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent Loan Party or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered Subsidiary thereof pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports any indenture, loan or credit or similar agreement and all Borrower Materials marked “PUBLIC” are permitted not otherwise required to be made available through a portion furnished to the Lenders pursuant to Section 6.01 or any other clause of the Platform designated “Public Investorthis Section 6.02;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Diamond Foods Inc), Credit Agreement (Diamond Foods Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower, and in the event of any change in generally accepted accounting principles used in preparation of such financial statements, the Borrower shall also provide, if necessary for determination of compliance with Section 7.11, a statement of reconciliation conforming such financial statements to GAAP;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are available, copies of each annual report, proxy or financial statement or other material report or communication sent to the stockholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fc) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;.
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Hillenbrand Industries Inc), 364 Day Credit Agreement (Hillenbrand Industries Inc)
Certificates; Other Information. Deliver to the Administrative Agent, who will make available to the Lenders, in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of each Borrower (which delivery may, unless the Administrative Agent, or a Responsible Officer 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); and in the event of any change in generally accepted accounting principles used in the Borrowerspreparation of such financial statements, the Borrowers shall also provide, if necessary for the determination of compliance with Section 7.11, a statement of reconciliation conforming such financial statements to GAAP and (ii) a copy of management’s discussion and analysis with respect to such financial statements;
(cb) 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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, 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 REITHoldings, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Holdings may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) if requested by the Administrative Agent or a Lender, within 30 days after 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 Lender through the Administrative Agent, may reasonably specify;
(e) promptly, and in any event within not later than five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any Material Debt Documents regarding or related to any breach or default by any party thereto or any other material correspondence received from event that could materially impair the SEC (value of the interests 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 the rights of any Borrower (except Loan Party or otherwise have a Material Adverse Effect and, from time to the extent prohibited by confidentiality obligations required time upon request by the SEC or any comparable agency)Administrative Agent, such information and reports regarding the Material Debt Documents as the Administrative Agent may reasonably request;
(f) 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 that could reasonably be expected to have a Material Adverse Effect; and
(g) promptly, (i) such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional request or (ii) information to be in form and detail documentation reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to requested by the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement Lender for purposes of compliance with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary applicable “know your customer” requirements under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)PATRIOT Act, the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (Beneficial Ownership Regulation or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireapplicable Anti-Money Laundering Laws. Documents required to be delivered pursuant to Section 6.01(a) or (b) 6.01 or Section 6.02(d) 6.02 (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 such materials are publicly available as posted on the Electronic Data Gathering Analysis and Retrieval System (XXXXX) or the Borrowers post such documents, or provide provides a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.03; 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that including, with respect to documents posted in satisfaction of Section 6.02, a reference to the requirements in such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(bsection being satisfied with such posting) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or 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”). The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (International Money Express, Inc.), Credit Agreement (International Money Express, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersGeneral Partner and (ii) a report, in form and substance satisfactory to the Administrative Agent, setting forth, as of the date of the most recent Compliance Certificate, all Hedging Contracts (if any) to which any Loan Party is a party;
(b) [reserved];
(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 equivalent body or the audit committee of the board of directors) of the REIT Parent Borrower or the General Partner by independent accountants in connection with the accounts or books of the REIT Parent 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 owners of the REITParent Borrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any material 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 Administrative Agent pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary thereof, copies of each material written 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 or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof that could reasonably be expected to cause a Material Adverse Effect;
(g) promptly after the assertion in writing 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 that could (i) reasonably be expected to result in a material Environmental Liability or (ii) cause any real property described in the Security Documents to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(h) promptly upon the occurrence thereof, notice of any acquisition or divestiture by Parent Borrower or any of its Subsidiaries of any assets or properties outside of the ordinary course of business or in excess of $10,000,000;
(except to the extent prohibited by confidentiality obligations required i) promptly upon its becoming available, copies of all notices or documents received by the SEC Parent Borrower or any comparable agencyother Loan Party pursuant to any Material Contract (including without limitation, the Acquisition Agreement) alleging a material default or nonperformance by such Person thereunder or terminating or suspending any such Material Contract (including, without limitation, the Acquisition Agreement);
(fj) as soon as available, and in any event within 45 days after the end of each fiscal year, a financial plan for Parent Borrower (in form reasonably satisfactory to the Administrative Agent), prepared or caused to be prepared by a Responsible Officer of the General Partner, setting forth for the then calendar year and financial projections for Parent Borrower, such projections certified by Responsible Officer of the General Partner as being based on reasonable estimates and assumptions taking into account all facts and information known (or reasonably available to the Parent Borrower or any of its Subsidiaries) by such Responsible Officer;
(k) [reserved];
(l) [reserved];
(m) at any time upon or after a Borrower or any Guarantor having Indebtedness rated by Xxxxx’x or S&P, prompt written notice of such rating or any change in such rating;
(n) concurrently with the annual renewal of the Loan Parties’ insurance policies, if requested by the Administrative Agent, a certificate of insurance showing all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(o) promptly, and in any event within five (5) Business Days after the effectiveness thereof, copies of any material amendment to any Borrower’s or any of the Guarantors’ charter, by-laws, partnership agreements, limited partnership agreements or other organizational documents, such notice to identify the amendments; and
(p) promptly, such additional information regarding the Collateral or the business, financial financial, legal or corporate affairs of the Borrowers any Borrower or any SubsidiaryGuarantor, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) or Section 6.02(b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Parent Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Parent Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 10.02, or (ii) on which such documents are posted on the Borrowers’ Parent 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), including ; or (iii) on which the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents Parent Borrower provides to the Administrative Agent or any Lender by electronic mail electronic versions (i.e., soft copies) of such documents (delivery of the Compliance Certificates required to be delivered pursuant to Section 6.02(a) also being deemed delivered on such date if included within such electronic mail under this clause (iii)); provided, the Parent Borrower shall upon its written the request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by of the Administrative Agent or provide to the Administrative Agent paper copies of any such Lenderelectronically delivered Compliance Certificate); provided further, and (ii) except with respect to current reports on Form 8-K, that the Borrowers Parent Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(bclause (i) may be delivered or (ii) above and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” soft copies) of such documents, and the Administrative Agent hereby agrees that it shall use reasonable commercial efforts to post such documents received pursuant to this clause (iii) on the Parent Borrower’s behalf to a commercial, third-party or “TIF”other website sponsored by the Administrative Agent and notify the Lenders of such posting. Except as expressly provided in the foregoing clause (iii) transmission. The 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 Borrowers Parent 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers materials Issuer materials, projections and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or 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 Borrowers Parent Borrower or their 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”). The Borrowers hereby agree that so long as any 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 and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer, the Swing Line Lender 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 Borrowers or their respective securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Tetra Technologies Inc), Credit Agreement (Compressco Partners, L.P.)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended March 31, 2021), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct 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 in “Management Discussion and Analysis” for any event 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 after receipt thereof of receipt, a copy of any financial examination reports by any BorrowerApplicable Insurance Regulatory Authority with respect to any Material Insurance Subsidiary relating to the insurance business of such Person (when, copies of each material notice or other material correspondence received from 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 SEC Administrative Agent, within ninety (or comparable agency in any applicable non-U.S. jurisdiction90) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results days of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency)such interim report;
(fg) 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) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; and
(j) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Mercury General Corp), Credit Agreement (Mercury General 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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(b) at least 30 days prior to the end of each fiscal year of the Borrower, beginning with the fiscal year ending March 31, 2008, an annual business plan and budget of the Borrower and its Subsidiaries containing, among other things, pro forma financial statements for each quarter of the next 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) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(de) promptly after the same are availablefurnishing thereof, copies of each annual report, proxy or financial any statement or other report furnished to any holder of debt securities of any Loan Party or communication sent any Subsidiary thereof pursuant to the stockholders terms of the REITany indenture, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file loan or be required to file with the SEC under Section 13 credit or 15(d) of the Securities and Exchange Act, similar agreement and not otherwise required to be delivered furnished to the Administrative Agent Lenders pursuant heretoto Section 7.01 or any other clause of this Section 7.02;
(ef) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a7.01(a) and (b), a certificate of a Responsible Officer of the REIT’s consolidated Borrower (i) listing (A) all applications by any Loan Party in the United States, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (B) all issuances to any Loan Party of registrations or letters on existing applications for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) in the United States received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (C) all material Trademark Licenses, material Copyright Licenses and material 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 (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 covenant projections for statements; and
(i) concurrently with the current delivery of the financial statements referred to in Sections 7.01(a) and (b), a certificate of a Responsible Officer of the succeeding three fiscal quartersBorrower listing all Subsidiaries of the Borrower formed or acquired, as prepared together with the (A) jurisdiction of formation, (B) number of shares of each class of Equity Interests outstanding, (C) number and percentage of outstanding shares of each class owned (directly or indirectly) by the REIT’s chief financial officer Borrower or any Subsidiary and (C) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other equivalent financial officer) and similar rights with respect thereto, since the date of the prior certificate (or, in a format and with the case of the first such detail as Administrative Agent may reasonably requirecertificate, the Closing Date). Documents required to be delivered pursuant to Section 6.01(a7.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) 7.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers BAS will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers BAS and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers BAS shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 make any of the Borrower Materials “PUBLIC”.
Appears in 2 contracts
Samples: Credit Agreement (Demand Media Inc.), Credit Agreement (Demand Media 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) Intentionally Omittedconcurrently 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 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended August 3, 2007), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of the Borrower or any Subsidiary thereof relating to any default or event of default under such 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) promptly, and in any event within five (5) ten Business Days after receipt thereof by the Borrower or any BorrowerSubsidiary 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 or other inquiry (excluding routine comment letters) by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender hereby acknowledge Borrower acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Lowes Companies Inc), Credit Agreement (Lowes Companies Inc)
Certificates; Other Information. Deliver The Parent will deliver to the Administrative AgentAgent for distribution to each Lender:
(a) Intentionally Omitted;
(bi) within 90 days after the end of the fiscal year of the Parent and (ii) concurrently with the delivery of the financial statements of the Loan Parties, other than the Parent, referred to in Sections 6.01(a) and (bSECTION 6.01(b), a duly completed Compliance Certificate certificate signed by a Responsible Officer of the Borrowers;Parent (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with SECTION 7.12.
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other material report or communication sent to the stockholders shareholders of the REITParent, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT Parent or any Subsidiary may file or be required to file with the SEC under Section 13 or 15(d) any Governmental Authority succeeding to any or all of the Securities and Exchange Actfunctions of the SEC, or with any national securities exchange, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptlypromptly after the furnishing thereof, copies of any material request or notice received by the Parent or any Subsidiary, or any statement or report furnished by the Parent or any Subsidiary to any holder of debt securities of the Parent or any Subsidiary, pursuant to the terms of any indenture, loan or credit or similar agreement and in any event within five not otherwise required to be furnished pursuant hereto;
(5d) Business Days promptly after receipt thereof by the Parent or any BorrowerSubsidiary, 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 or other similar inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Parent or any comparable agency);Subsidiary thereof; and
(fe) promptlypromptly following any request therefor, (i) such additional other information regarding the businessoperations, business or financial or corporate affairs condition of the Borrowers Parent 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, all such additional ; or (ii) information to be in form and detail documentation reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to requested by the Administrative Agent or any Lender for purposes of compliance with the Lenders (or their designated representative) is then prohibited by law or Beneficial Ownership Regulation, any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary other applicable “know your customer” requirements under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)Bribery Act, the REIT’s consolidated financial covenant projections for FCPA, the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (PATRIOT Act or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireapplicable anti-money laundering laws. Documents required to be delivered pursuant to Section SECTION 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SECSECTION 6.01(b) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto materials are publicly available as posted on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 Electronic Data Gathering, Analysis and Retrieval system (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative AgentXXXXX); or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Parent shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered material documentation and provide to the Administrative Agent by electronic image scan mail versions (e.g.i.e., “PDF” or “TIF”with soft copies) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: Revolving Credit Agreement (Enstar Group LTD), Revolving Credit Agreement
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersCompany;
(cb) 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 REIT Company by independent accountants in connection with the accounts or books of the REIT Company 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 material report or communication sent to the stockholders of the REITCompany, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any material 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;
(e) promptly, and in any event within five (5) Business Days 15 days after receipt thereof by any BorrowerLoan 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 or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to if the Borrowers Administrative Agent requests the 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) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers Company 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 Borrowers and each Lender Any information received by the Administrative Agent pursuant to Section 6.01 or 6.03, or this Section 6.02 shall be promptly delivered to the Lenders by the Administrative Agent. Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers any Borrower or their its securities) (each, a “Public Lender”). The Borrowers Each Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” ”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Wiley John & Sons, Inc.), Credit Agreement (Wiley John & Sons, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrowers;
Borrower (c) promptly after any request by which delivery may, unless the Administrative Agent or any Lendera Lender requests executed originals, copies of any detailed audit reports, management letters be by electronic communication including fax or recommendations submitted email and shall be deemed to the board of directors (or the audit committee of the board of directors) of the REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of thembe an original authentic counterpart thereof for all purposes);
(db) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fc) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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; and
(d) promptly following any request therefor, all such additional information to be in form and detail documentation reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to requested by the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any armsLender for purposes of compliance with applicable “know your customer” and anti-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorneymoney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereoflaundering rules and regulations, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Codeincluding, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)without limitation, the REIT’s consolidated financial covenant projections for the current PATRIOT Act and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireBeneficial Ownership Regulation. Documents required to be delivered pursuant to Section 6.01(a) or (b) or paragraph (b) of this Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)xxx.xxxxxxxx.xxx; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 documentsBorrower. The Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Qualcomm Inc/De), Credit Agreement (Qualcomm Inc/De)
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b(b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (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) 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, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(c) promptly after the furnishing thereof, copies of any request requests or notices received by any Loan Party (other than in the Administrative Agent ordinary course of business), statement or report furnished to any holder of any Indebtedness of any Loan Party or of any of its Subsidiaries 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 receipt thereof by any Loan Party or any Lenderof its Subsidiaries, 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 or any of its Subsidiaries;
(e) reasonably promptly after the assertion or occurrence thereof, notice of any action arising under any Environmental Law or otherwise relating to any Hazardous Material against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) a report supplementing Schedule 5.16 (in connection with the delivery of the annual financial statements only) and Schedule 5.08(b) hereto, including, in the case of supplements to Schedule 5.08(b), an identification of all Material Real Property disposed of by any Loan Party 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 (if available), county or other relevant jurisdiction, state, and the record owner and (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 2.03(b);
(g) copies of any notice of default under, and any material amendment, supplement, waiver or other modification of, the ABL Facility or the Second Lien Credit Agreement;
(h) promptly upon receipt 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;; and
(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 REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fi) promptly, such additional information regarding the business, legal, financial or corporate affairs or operations of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, the Collateral Agent or any Lender (through the Administrative Agent) may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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, including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that .
(a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive shall contain any material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative AgentHoldings, the Joint Lead ArrangersBorrower, the L/C Issuers its Subsidiaries and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws and (providedii) authorizes the Administrative Agent, howeverthe Collateral Agent, that the Arrangers and the Lenders to the extent such treat all Borrower Materials constitute Information delivered pursuant to Section 6.01(a), 6.01(b) or 6.02(a) as not containing any material non-public information with respect to Holdings, the Borrower, its Subsidiaries and their respective securities for purposes of Section 10.07, they shall be subject United States Federal and state securities laws and as suitable for distribution to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: First Lien Credit Agreement (GMS Inc.), First Lien Credit Agreement (GMS Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently with no later than five days after the delivery of the financial statements referred to in Sections 6.01(a) and (b6.01(b), commencing with the first full fiscal quarter completed after the Closing Date, a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are publicly available, copies of each annual reportall annual, proxy regular, periodic and special reports and registration statements which Holdings, the Borrower or financial statement or other report or communication sent to the stockholders any member of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file Restricted Group files with the SEC under Section 13 or 15(dwith 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) of the Securities and Exchange Act, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each material notice any notices of default received by any Loan Party or other material correspondence received from Restricted Subsidiary or reports that any Loan Party or Restricted Subsidiary shall send or otherwise make available to 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 holders of any Borrower publicly issued debt, which shall include securities issued pursuant to a Rule 144A offering (except including to holders of the 2021 Unsecured Notes or the 2025 Unsecured Notes) of any Loan Party or any Restricted Subsidiary, in their capacity as such holders, in each case, in a principal amount in excess of the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any clause of this Section 6.02 (in each case to the extent prohibited by confidentiality obligations required by not theretofore delivered to the SEC or any comparable agencyAdministrative Agent pursuant to this Agreement);
(fd) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates only, a report setting forth the information required by sections of the Perfection Certificate describing the legal name and the jurisdiction of organization or 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 Closing Date or the date of the last such report, (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 2.13(a) and (iii) a list of each Subsidiary of the Borrower that identifies each Subsidiary as a Restricted or an Unrestricted Subsidiary and as a Loan Party or a non-Loan Party as of the date of delivery of such Compliance Certificate;
(e) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;and
(gf) promptly after the occurrence thereofrequest by any Lender, notice 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 USA PATRIOT Act. Each of Holdings, the Borrower and each Lender acknowledge that certain of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the CodeLenders may be Public Lenders and, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (documents or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents notices required to be delivered pursuant to this Section 6.01(a) 6.02 or (b) otherwise are being distributed through a Platform, any document or Section 6.02(d) (to notice that Holdings or the extent any such documents are included in materials otherwise filed with the SEC) may Borrower, as applicable, has indicated contains material non-public information shall not 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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which such documents are posted on that portion of the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender Platform designated for such Public Lenders. Each of Holdings and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; Borrower agrees to clearly designate all information provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g.or on its behalf which is suitable to make available to Public Lenders. If Holdings or the Borrower has not indicated whether a document or notice delivered pursuant to this Section 6.02 contains material non-public information, “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or reserves the Joint Lead Arrangers will make available right to the Lenders and the L/C Issuers materials and/or information provided by post such document or notice solely on behalf that portion of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Platform designated for Lenders may be “public-side” Lenders (i.e., Lenders that do not who wish to receive material non-public information with respect to the Borrowers or Holdings, its Subsidiaries and their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: Term Loan Amendment (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) Intentionally Omittedno later than five days after the delivery of the financial statements referred to in Section 6.01(a) but only to the extent permitted by the internal policies of the independent certified public accountants of the Borrower and the accounting industry policies generally followed by independent certified public accountants, a certificate or report of the Borrower’s independent certified public accountants stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default arising from a breach of Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) concurrently with no later than five days after the delivery of the financial statements referred to in Sections 6.01(a) and (b), beginning with the fiscal period ending June 30, 2014, a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual reportall annual, proxy or financial statement or other report or communication sent to the stockholders of the REITregular, periodic and copies of all quarterly special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each material notice any requests or notices received by any Loan Party (other material correspondence received from than in the SEC (or comparable agency in any applicable non-U.S. jurisdictionordinary course of business) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results and copies of any Borrower (except statement or report furnished to any holder of debt of any Loan Party or of any of its Subsidiaries, in each case pursuant to the extent prohibited by confidentiality obligations required by the SEC terms of any Unsecured Financing Documentation or any comparable agency)other 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;
(e) promptly after the assertion or occurrence thereof, notice of any Environmental Liability, 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;
(f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(b) with respect to a fiscal year end, (i) a report supplementing Schedule 5.12 hereto to the extent there are any changes that have occurred with respect to the information contained therein so that the related representation and warranty would be true and correct in all material respects if made as of the date of such Compliance Certificate and (ii) a report for each Loan Party identifying all Material Real Property disposed of by any Loan Party during such fiscal year and a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value and Fair Market Value thereof) of all Material Real Property acquired by such Loan Party during such fiscal year; and
(g) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers Borrower or any Subsidiaryof the Restricted Subsidiaries 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 on which such documents are (i) on which available via the Borrowers post such documents, or provide a link thereto XXXXX system of the SEC on the Borrowers’ Internet or (ii) posted on the Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); xxxx://xxx.xxxxxxx.xxx or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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), including the SEC’s XXXXX website; provided that: that (i) upon written request by the Borrowers Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each such Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain or deliver to Lenders paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower with any such request by a Lender for delivery, and 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Visteon Corp), Credit Agreement (Visteon 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) Intentionally Omittedconcurrently 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 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(a7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after any request by the Administrative Agent, documents and other information supporting the calculation of any defined term used in the computation in any Compliance Certificate of the financial covenants set forth in Section 8.12;
(e) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ef) promptly, as soon as available and in any event within five (5) Business Days no later than 60 days after receipt thereof by any the beginning of each fiscal year of the Borrower, copies a consolidated business plan for the Borrower and its Subsidiaries prepared by management of each material notice or other material correspondence received from the SEC Borrower, substantially similar in form and detail to the business plans prepared prior to the Closing Date and furnished to the Administrative Agent and including balance sheets, and related statements of operations, retained earnings and cash flow (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by to include separate forecasts for Consolidated Capital Expenditures and Consolidated EBITDA), on a quarterly basis for such agency regarding financial or other operational results Fiscal Year, and a reasonably detailed explanation of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);underlying assumptions with respect thereto; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a7.01(a) or (b) or Section 6.02(d7.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet IntraLinks/IntraAgency or intranet 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 and each of the Lenders. Except for such Compliance Certificates, 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Walter Industries Inc /New/), Credit Agreement (Walter Industries Inc /New/)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections Section 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower (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);
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and whether or not otherwise required to be delivered to the Administrative Agent 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 Borrower 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 any statement or report furnished to any holder of debt or equity 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;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly as soon as available, but in any event within 60 days after the occurrence thereof, notice end of each fiscal year of the failure of Borrower, a report summarizing the REIT to maintain REIT Status or of any existing Subsidiary of insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify; and
(h) concurrently promptly after the assertion or occurrence thereof, notice of any Environmental Claim 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 delivery of the financial statements referred Mortgages to in Sections 6.01(a) and (b)be subject to any restrictions on ownership, the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quartersoccupancy, as prepared by the REIT’s chief financial officer (use or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requiretransferability under any Environmental Law. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 and if so delivered, shall be deemed to have been delivered on the date (i1) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii2) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) with respect to the Borrowers 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 upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-Kany such documents, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmissiondocuments. 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 Borrowers 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. Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower materials “PUBLIC.” The Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (“MNPI”) (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and 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 (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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, Credit Agreement (Post Holdings, 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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersToro;
(cb) 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 REIT Toro by independent accountants in connection with the accounts or books of the REIT Toro 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 REITToro, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Toro may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) concurrently with the closing of a Receivables Purchase Facility, a copy of the documentation related thereto certified by a Responsible Officer as being true, correct and complete;
(e) so long as it is not precluded from doing so by the rules of the SEC or other comparable agency, promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice or other material correspondence correspondence, other than routine comments on filed documents, received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation (whether formal or possible investigation or other inquiry informal) by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Toro 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Toro posts such documents, or provide provides a link thereto on the Borrowers’ Toro’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ Toro’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), including the SEC’s XXXXX website; provided that: (i) the Borrowers that Toro shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers that requests Toro 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers Toro 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers 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) (each, a “Public Lender”). The Borrowers Each Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers ”, such Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers such Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Toro Co), Credit Agreement (Toro Co)
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ending September 30, 2007), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersOfficer;
(cb) 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 REIT Borrower by independent accountants in connection with an audit of the accounts or books of the REIT or any SubsidiaryBorrower;
(c) concurrently with the delivery of the financial statements referred to in Section 6.01(a), or any audit 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 themsuch event;
(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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by the Borrower or any BorrowerSubsidiary 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 or other inquiry by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 have personnel that do not wish to receive material non-public information with respect to the Borrowers Borrower or their securities) (eachits Affiliates, a “Public Lender”)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’ activities. The Borrowers Borrower hereby agree 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; , (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); ) (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Hcp, Inc.), Credit Agreement (Health Care Property Investors 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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersDomestic Borrower (which delivery may, unless 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 all purposes);
(cb) 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 REIT Domestic Borrower by independent accountants in connection with the accounts or books of the REIT Domestic Borrower 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 REITDomestic Borrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Domestic Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the 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;
(e) promptly, and in any event within five (5) fifteen Business Days after receipt thereof by any BorrowerLoan 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. non‑U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) promptly, such additional information regarding any Foreign Pension Plans, as the Administrative Agent or any Lender may from time to time reasonably request;
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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;
(h) promptly after the assertion or occurrence thereof, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide notice of any information (i) in respect action or proceeding against or of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited any noncompliance by law or any arms-length agreement with unaffiliated third parties binding on any Borrower Loan Party or any of its Subsidiaries with any Environmental Law or (ii) is subject Environmental Permit that could reasonably be expected to attorney-client privilege or constitutes attorney work producthave a Material Adverse Effect;
(gi) promptly as soon as available, but in any event within 30 days after the occurrence establishment thereof, notice a report supplementing Schedule 5.12(d) setting forth each new Pension Plan, Foreign Pension Plan or Multiemployer Plan for which any Borrower, any Subsidiary or any ERISA Affiliate could have liability as may be necessary for such Schedule to be accurate and complete, each such report to be signed by a Responsible Officer of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if Domestic Borrower and to the extent required by applicable Law, such notice to be in a form and detail reasonably satisfactory to the Administrative Agent;
(j) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act;
(k) not later than five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all material notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any Qualified Securitization Transaction, any Permitted Receivables Facility or any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding any Qualified Securitization Transaction, any Permitted Receivables Facility and such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
(l) following the Lite-On Acquisition Date, not later than five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all material notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any Lite-On Acquisition Related Document and, from time to time upon request by the Administrative Agent, such information and reports regarding the Lite-On Acquisition Related Documents as the Administrative Agent may reasonably request; and
(hm) concurrently with to the delivery of extent any Loan Party qualifies as a “legal entity customer” under the financial statements referred 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 Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and relation to such Loan Party that would result in a format and with change to the list of beneficial owners identified in such detail as Administrative Agent may reasonably requirecertification. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Domestic Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Domestic Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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 third‑party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (iA) the Borrowers Domestic Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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, Lender and (iiB) except with respect to current reports on Form 8-K, the Borrowers Domestic Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will any Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak Syndtrak, ClearPar or another a substantially similar electronic transmission 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 Borrowers or their securities) (each, a “Public Lender”)) may have personnel who do not wish to receive material non‑public information with respect to any of the Borrowers 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 Borrowers Each Borrower hereby agree agrees that so long as such Borrower is the issuer of any outstanding debt or Equity Interests 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 Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers such Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the Joint Lead Arrangers, the L/C Issuers 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 or proprietary) with respect to the Borrowers such Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers any Affiliate thereof and any Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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/), Second Amended and Restated Credit Agreement (Diodes Inc /Del/)
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) Intentionally Omittedconcurrently 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 Event of Default or, if any such Event of Default shall exist, stating the nature and status of such event (which certificate may be limited to the extent required by accounting rules or guidelines);
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersCompany;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are become publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITCompany, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fd) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Borrower Agent posts such documents, or provide provides a link thereto on the Borrowers’ Borrower Agent’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower Agent shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers 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, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower Agent shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers any Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrower or its Affiliates, or the Borrowers or their 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”). The Borrowers Each Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers each Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers such Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Tidewater Inc), Credit Agreement (Tidewater Inc)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution by the Administrative Agent to each Lender:
(a1) Intentionally Omitted;
no later than five (b5) concurrently with days after the delivery of the financial statements referred to in Sections 6.01(a6.01(1) and (b2) (commencing with such delivery for the fiscal quarter ending August 3, 2019), a duly completed Compliance Certificate signed by a Responsible Financial Officer of the BorrowersBorrower;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d2) promptly after the same are publicly available, copies of each annual reportall annual, regular, periodic and special reports, proxy or financial statement or other report or communication sent to the stockholders of the REIT, statements and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT may file Borrower or be required to file any Subsidiary files with the SEC under Section 13 or 15(d) of with any Governmental Authority that may be substituted therefor or with any securities exchange or commission, as the Securities and Exchange Actcase 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 in any case not otherwise required to be delivered to the Administrative Agent pursuant heretoto any other clause of this Section 6.02;
(e3) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing 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 notices of default to any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results holder of any Borrower (except 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 extent prohibited by confidentiality obligations ABL Facility, 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 by to be furnished to the SEC or Administrative Agent pursuant to any comparable agency)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 report setting forth the information required by Sections 1(a), (e) and (f), Section 2(a) and Section 11 of the Perfection Certificate (or confirming that there has been no change in such information since the latter of the Closing Date or the last such report); and
(5) promptly, such additional information regarding the business, business and financial or corporate affairs of the Borrowers any Loan Party or any Material Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender Required Lenders may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent on its own behalf or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or behalf of any existing Subsidiary of the REIT Lender reasonably request in writing from time to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requiretime. Documents required to be delivered pursuant to Section 6.01(a) or (b) 6.01 or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC6.02(2) may be delivered electronically and if so delivered, shall be deemed to have been delivered to the Administrative Agent and Lenders on the date (ia) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto thereto, on the Borrowers’ 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 upon at least ten (10) Business Days prior written notice to the Administrative Agentin accordance with Section 10.02); or (iib) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet IntraLinks/IntraAgency or intranet 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), including the SEC’s XXXXX website; provided that: that (i) upon written request by the Borrowers shall Administrative Agent, the Borrower will deliver paper copies of such documents to the Administrative Agent or any for further distribution by the Administrative Agent to each Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent in writing of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at or link and, upon the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered Administrative Agent’s request, provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Borrower with any such request by a Lender 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak IntraLinks 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 Borrowers Borrower, its Subsidiaries or 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”). The Borrowers Borrower hereby agree agrees that (wi) all such Borrower Materials (other than SEC Reports) that are to be made available to Public Lenders shall 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; (xii) by marking Borrower Materials “PUBLIC,” the Borrowers shall Borrower will be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Agent and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws containing only Public-Side Information (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall will be subject to the terms of treated as set forth in Section 10.0710.09); (yiii) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” Side Information”; and (ziv) the Administrative Agent and will treat the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 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.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Torrid Holdings Inc.), Term Loan Credit Agreement (Torrid Holdings Inc.)
Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b6.01(b), a duly completed Compliance Certificate signed executed by a Responsible Officer of the BorrowersBorrower;
(b) within seventy-five (75) days after end of each Fiscal Year, the annual budget of the Loan Parties and their Subsidiaries containing projected consolidated statements of income or operations of the Loan Parties and their Subsidiaries as at the end of each Fiscal Quarter of the then current 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of themConsolidated Group;
(d) promptly after the same are availableavailable (and in any event within ten (10) days thereof), (i) copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITany Loan Party, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT any Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, Act 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) 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 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 authorities concerning environmental, health or safety matters; and
(e) promptly, promptly (and in any event within five two (52) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agencya reasonable request therefor);
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a), 6.01(b) or (b6.01(d) or Section 6.02(d6.02(e)(i) may (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)12.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet IntraLinks or intranet another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-third party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that reasonably requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given delivered by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificate required by Section 6.02(b) to the Administrative Agent and each of the Lenders. Except for such Compliance Certificate, 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) Intentionally Omittedno later than five days after the delivery of (i) the financial statements referred to in Section 6.01(a), or (ii) an Annual Report on Form 10-K (delivered pursuant to the last paragraph of Section 6.01) for any Fiscal Quarter for which the financial covenant set forth in Section 7.11 is required to be tested, but only to the extent permitted by accounting industry policies generally followed by independent certified public accountants, a certificate or report of the Borrower’s independent certified public accountants stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default arising from a breach of Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) concurrently with no later than five days after the delivery of (i) the financial statements referred to in Sections 6.01(a) and (b), or (ii) an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q (in either case, delivered pursuant to the final paragraph of Section 6.01), beginning with the Fiscal Quarter ending March 30, 2014, a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (which delivery may be by electronic communication including fax or electronic mail and shall be deemed to be an original authentic counterpart thereof for 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual reportall annual, proxy or financial statement or other report or communication sent to the stockholders of the REITregular, periodic and copies of all quarterly special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each material notice any requests or notices received by any Loan Party (other than in the ordinary course of business) and copies of any statement or report furnished to any holder of debt securities of the Borrower or of any of its Restricted Subsidiaries pursuant to the terms of any such securities 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;
(e) promptly following their submission with the FCC, copies of any and all Ownership Reports on FCC Form 323 and such other non-ordinary course reports, applications, or other material correspondence received documents as may be filed 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 Borrower (except time to the extent prohibited by confidentiality obligations required time by the SEC Borrower or any comparable agency);of its Restricted Subsidiaries, solely if such filings are publicly available if (i) such filings indicate that a material adverse effect in the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or is reasonably likely to occur or (ii) copies thereof are requested by any Lender or the Administrative Agent; and
(f) promptly, such additional financial or other information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Subsidiaryof its Restricted Subsidiaries thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender the Required Lenders through the Administrative Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) or (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or and (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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), including the SEC’s XXXXX website; provided that: that (i) upon written request by the Borrowers Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain or deliver to Lenders paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower with any such request by a Lender for delivery, and 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or their securities) (each, a “Public Lender”)) may have personnel who wish only to receive Public Side Information, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information containing only Public Side Information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;Side Information” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information” (it being understood the Borrower and its Restricted Subsidiaries shall not be under any obligation to xxxx any particular Borrower Materials “PUBLIC”). Notwithstanding anything herein to the contrary, (x) the list of Disqualified Lenders and (y) unless the Borrower otherwise notifies the Administrative Agent, financial statements delivered pursuant to Sections 6.01(a) and (b) and Compliance Certificates delivered pursuant to Section 6.02(b), shall be deemed to be suitable for posting on a portion of the Platform designated “Public Side Information”. Unless expressly identified as Public Side Information, the Administrative Agent and the Arrangers agree not to make any such Borrower Materials available to Public Lenders.”
Appears in 2 contracts
Samples: Credit Agreement (Chicagoland Television News, LLC), Credit Agreement (Tribune Media Co)
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) Intentionally Omittedconcurrently 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 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(a7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(c) at least 60 days after the end of each fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2006, an annual business plan and budget of the Borrower and its Subsidiaries containing, among other things, pro forma financial statements for each quarter of the next fiscal year (it being understood that such budget may not include any stock-based expenses of the Borrower and its Subsidiaries);
(d) promptly after any request by the Administrative Agent or any Lender, 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;
(e) 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, Debt Issuances, Equity Issuances and Acquisitions, in any one instance exceeding the Threshold Amount, that occurred during the period covered by such financial statements;
(f) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(dg) promptly after the same are availablefurnishing thereof, copies of each annual report, proxy or financial any statement or other report furnished to any holder of debt securities of any Loan Party or communication sent any Subsidiary thereof pursuant to the stockholders terms of the REITany indenture, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file loan or be required to file with the SEC under Section 13 credit or 15(d) of the Securities and Exchange Act, similar agreement and not otherwise required to be delivered furnished to the Administrative Agent Lenders pursuant heretoto Section 7.01 or any other clause of this Section 7.02;
(eh) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(fi) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;.
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided other than any documents filed with the SEC that such notices may are publicly available on the SEC's Internet website. Notwithstanding anything contained herein, in every instance the Borrower shall be provided by commercial third-party websites by electronic mail at the direction required to provide paper copies of the Borrowers). Documents Compliance Certificates required to be delivered pursuant to by Section 6.02(b7.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g.Agent. Except for such Compliance Certificates, “PDF” or “TIF”) transmission. The 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Wright Medical Group Inc), Credit Agreement (Wright Medical 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) Intentionally Omittedconcurrently 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 6.01(a) and (b) (commencing with the fiscal quarter ended June 30, 2018), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersCompany (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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REITCompany, and copies of all quarterly annual, regular, periodic and special reports and registration statements (other than registration statements on Form 10-Q and current reports on Form 8-K S-8 or any successor form thereto) which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any correspondence, notice, statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof with respect to any default or event of default under 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;
(e) promptly, and in any event within five (5) Business Days after the Company is aware of receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding material financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Material Subsidiary; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) 6.02 (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 Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Company 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 (within the meaning of the United States Federal and state securities laws) with respect to any of the Borrowers or their securities) respective Affiliates, or the respective securities of any of the foregoing (each, a “Public LenderMNPI”), and who may be engaged in investment and other market related activities with respect to such Persons’ securities. The Borrowers Each Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) containing any MNPI with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Avnet Inc), Credit Agreement (Avnet Inc)
Certificates; Other Information. Deliver The Borrower will deliver to the Administrative AgentAgent and each Lender:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 5.01(a), but only to the extent consistent with accounting industry policies generally followed by independent certified public accountants, a certificate of its independent certified public accountants stating that in making the examination necessary therefor no knowledge was obtained of any Default arising from a breach under Section 6.12 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(a5.01(a) and (b), a duly completed Compliance Certificate certificate signed by a Responsible Officer of the BorrowersBorrower substantially in the form of Exhibit C (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT Borrower or any Subsidiary may file or be required to file with the SEC under Section 13 or 15(d) any Governmental Authority succeeding to any or all of the Securities and Exchange Actfunctions of the SEC, or with any national securities exchange, and not otherwise required to be delivered pursuant hereto;
(d) promptly after the furnishing thereof, copies of any material request or notice received by the Borrower or any Subsidiary, 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 Administrative Agent terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished pursuant hereto;
(e) promptly, and in any event within five (5) Business Days promptly after receipt thereof by the Borrower or any BorrowerSubsidiary, 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 or other inquiry by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency)Subsidiary thereof;
(f) promptlypromptly following request therefor, such additional information regarding copies of any detailed audit reports, management letters or recommendations submitted to the business, financial board of directors (or corporate affairs the audit committee of the Borrowers board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or compliance with the terms any audit of the Loan Documents, any of them as the Administrative Agent or any Lender (through the Agent) may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after on or before the occurrence thereof, notice twentieth (20th) day of the failure of the REIT to maintain REIT Status each calendar month (or of any existing Subsidiary of the REIT to maintain its status at such other frequency as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail Agent may reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (brequire), a Borrowing Base Certificate substantially in the REIT’s consolidated financial covenant projections for the current form of Exhibit D attached hereto executed by a Responsible Officer together with detailed delinquency report books and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer records consisting of data tape information (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required consisting of data elements acceptable to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (SWK Holdings Corp), Credit Agreement (SWK Holdings Corp)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omittedno later than five days after the delivery of (i) the financial statements referred to in Section 6.01(a) or (ii) an Annual Report on Form 10-K (delivered pursuant to the last paragraph of Section 6.01), but only to the extent permitted by accounting industry policies generally followed by independent certified public accountants, a certificate of the 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 arising from a breach of the Financial Covenant (to the extent then applicable) or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) concurrently with no later than five days after the delivery of (i) the financial statements referred to in Sections 6.01(a) and (b) or (ii) an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q (in either case, delivered pursuant to the last paragraph of Section 6.01), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersParent Borrower (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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual reportall annual, proxy regular, periodic and special reports and registration statements which Holdings or financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT Parent Borrower may file or be required to file file, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any notices received by any Loan Party (other than in the ordinary course of business) and copies of any statement or report furnished to any holder of debt securities or loans 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 or annual certificates), in each case pursuant to the terms of any Junior Financing 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;
(e) promptly, and in any event within five (5) Business Days promptly after the receipt thereof by any BorrowerLoan Party or any of its Subsidiaries, 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 material investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)of its Subsidiaries;
(f) promptly after the assertion or occurrence thereof, notice of any action arising under any Environmental Law against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit, in each case that would reasonably be expected to have a Material Adverse Effect;
(g) together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), a report supplementing Schedule 5.12 hereto to the extent necessary so that the related representation and warranty would be true and correct if made as of the date of such Compliance Certificate; and
(h) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, Restricted Subsidiary thereof as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a), (b), (c) or (bd) or Section 6.02(d6.02(c) or (d) (or 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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which such documents are posted on the Borrowers’ Parent Borrower’s (or any Parent Holding Company or Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) behalf on an the Approved Electronic Platform 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), including the SEC’s XXXXX website; provided that: (i) upon written request by the Borrowers Administrative Agent, the Parent Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Parent Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered described in this paragraph and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents to the extent requested by the Administrative Agent. The Administrative Agent shall have no obligation to request the delivery of or to maintain or deliver to Lenders paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Parent Borrower with any such request by a Lender for delivery, and 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 Borrowers and each Lender Parent Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Parent Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks/IntraAgency, SyndTrak 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 (within the meaning of United States federal and state securities laws) with respect to Holdings or its Affiliates, or the Borrowers or their 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”). The Borrowers Parent Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC SIDE” or “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC SIDE” or “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC SIDE” or “PUBLIC,” ”, the Borrowers Parent Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers Holdings or its Affiliates, or their respective securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC SIDE” or “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;Side Information” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC SIDE” or “PUBLIC” as being shall be deemed to contain material non-public information (within the meaning of United States federal and state securities laws) and shall not be suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information.” Notwithstanding anything herein to the contrary, financial statements delivered pursuant to Sections 6.01(a) and (b) and Compliance Certificates delivered pursuant to Section 6.02(b) shall be deemed to be suitable for posting on a portion of the Platform designated “Public Side Information.”
Appears in 2 contracts
Samples: Credit Agreement (Maravai Lifesciences Holdings, Inc.), Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omittedconcurrently 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 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Financial Officer of the BorrowersBorrower (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);
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Restricted Subsidiaries, 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 stockholders, partners or members (or the equivalent of the REITany thereof) of any Loan Party, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower or any of its Subsidiaries may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) 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 Restricted Subsidiaries pursuant to the terms of any 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 not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;
(f) as soon as available, but in any event within 30 days after each annual renewal of the applicable insurance policies, a certificate summarizing the insurance coverage (specifying type, amount and carrier) in effect for the Borrower and its Restricted Subsidiaries and such additional information regarding such insurance coverage as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;
(g) promptly, and in any event within five (5) Business Days 15 days after receipt thereof by any BorrowerLoan 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 or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(fh) [intentionally omitted];
(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 Restricted Subsidiaries with any Environmental Law or Environmental Permit or any action, investigation or proceeding relating to Hazardous Materials 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 restrictions on ownership, occupancy, use or transferability under any Environmental Law that would materially interfere with or adversely impact the use of the affected property in the Business;
(j) as soon as available but in any event at least prior to the closing of any material Acquisition (including any Specified Acquisition), copies of the definitive documents regarding the acquired assets, including any schedules reflecting litigation liabilities, environmental liabilities, and other assumed liabilities and any other information regarding the acquired assets as the Administrative Agent may reasonably request;
(k) promptly and in any event within five Business Days after receipt thereof by the Borrower and its Restricted Subsidiaries, a copy of any material notice, summons, citation, proceeding or order received from the FERC or any other Governmental Authority concerning the regulation of any material portion of the Pipeline Systems;
(l) if the Borrower elects to have a Specified Acquisition Period apply with respect to a Specified Acquisition, written notice of such election within 30 days of the consummation of the Specified Acquisition; and
(m) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers Borrower shall deliver paper copies of such documents any Compliance Certificate to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmissionAgent. 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 Borrowers Borrower, as applicable, 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 Borrower acknowledge that no Materials will be marked “PUBLIC” other than publicly available information filed by the Loan Parties with the SEC.
Appears in 2 contracts
Samples: Credit Agreement (Tesoro Corp /New/), Credit Agreement (Tesoro Logistics Lp)
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersCompany;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) 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 REITCompany, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptly after the 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;
(d) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower Loan Party or any Subsidiary thereof;
(except e) promptly upon receipt thereof, copies of all material notices, requests and other documents received by any Loan Party or any of its Subsidiaries under or pursuant to the extent prohibited by confidentiality obligations required any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the SEC or any comparable agency);Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers Company 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers any Borrower or their its securities) (each, a “Public Lender”). The Borrowers Each Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” ”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Perkinelmer Inc), Credit Agreement (Perkinelmer Inc)
Certificates; Other Information. Deliver The Borrower will deliver to the Administrative Agent:Agents (for further distribution to each Lender):
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)Section 5.01, a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are available, copies of each annual report, proxy or financial statement or other material report or communication sent generally to the stockholders or securityholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent Agents pursuant hereto; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (b) (other than materials required to be delivered under Section 5.01(a) and (b)) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or the website of the SEC until the Administrative Agents provide written notice to a Responsible Officer of the Borrower that the Administrative Agents have both unsubscribed from such Email Alerts, the Borrower shall not be required to notify the Administrative Agents of the posting of any such documents posted on such website;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fc) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender Agents may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(hd) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a5.01(a), a detailed consolidated budget of the Borrower and its Consolidated Subsidiaries by month for such fiscal year (including a projected consolidated balance sheet and the related consolidated statements or projected cash flows and projected income of the Borrower and its Consolidated Subsidiaries for each quarter of such fiscal year). In addition, promptly after the delivery of the information referred to in Section 5.01(a) or (b) or Section 6.02(d) (to ), as applicable, the extent any such documents are included in materials otherwise filed Borrower shall also hold live quarterly conference calls with the SEC) may be delivered electronically and if so deliveredopportunity to ask questions of management; provided, however, that the preceding requirement shall be deemed to have been delivered on satisfied by the date holding of a quarterly earnings call by the Borrower as it customarily conducts with its stockholders. No fewer than five (i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (105) Business Days prior written to the date such conference call is to be held, the Borrower shall give notice to each Administrative Agent of such quarterly conference call for the Administrative Agent); or (ii) on benefit of the Lenders, which such documents are posted on notice shall contain the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender time and the Administrative Agent have date of such conference call and information on how to access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: such quarterly conference call. The Borrower hereby (i) the Borrowers shall deliver paper copies of such documents to authorizes the Administrative Agent or any Lender upon its written request Agents to make the Borrowers financial statements to deliver such paper copies until a written request be provided above along with the Loan Documents, available to cease delivering paper copies is given by the Administrative Agent or such Lender, all Lenders and (ii) except with respect agrees that at the time such financial statements are provided hereunder, they shall already have been made available to current reports on Form 8-K, the Borrowers shall notify the holders of its securities. The Borrower will not request that any other material be posted to all Lenders without expressly representing and warranting to each Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided in writing that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive constitute material non-public information with respect to or the Borrowers or their Borrower has no outstanding publicly traded securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as In no event will either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled post compliance certificates or budgets to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investorpublic side Lenders.”
Appears in 2 contracts
Samples: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, 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) Intentionally Omittedconcurrently 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 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the 4310184v5 Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the 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; and
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower's website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “"Borrower Materials”") by posting the Borrower Materials on IntraLinks, SyndTrak 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-non- 4310184v5 public information with respect to the Borrowers Borrower or their its securities) (each, a “"Public Lender”"). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “"PUBLIC,” " the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “"Public Investor;” " and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “"PUBLIC” " as being suitable only for posting on a portion of the Platform not designated “"Public Investor.”"
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Samples: Credit Agreement (Cross a T Co), Credit Agreement (Cross a T Co)
Certificates; Other Information. Deliver to the Administrative AgentLender, in form and detail satisfactory to Lender:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 7.2(a), a certificate of independent certified public accountants certifying such financial statements;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a7.2(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower which shall include such supplements to Section 6.17 of the Disclosure Schedule as are necessary such that, as supplemented, the relevant disclosures would be accurate and complete as of the date of such Compliance Certificate;
(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 Borrower’s Board of directors Directors (or the audit committee of the board Board of directorsDirectors) of the REIT by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are availablepublicly available (but in any event within five (5) days after filing with the SEC), copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent Lender pursuant hereto; provided, however, that Borrower shall not be obligated to deliver any of the foregoing to Lender if and to the extent that the same have been filed with the SEC and therefore are available to Lender;
(e) promptly after the furnishing thereof, copies of any material 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 Lender pursuant hereto; provided, however, that Borrower shall not be obligated to deliver any of the foregoing to Lender if and to the extent that the same have been filed with the SEC and therefore are available to Lender;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to to: (a) Section 6.01(a7.2(a) or (b) or Section 6.02(d7.3(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to in Section 7.3 of the Administrative Agent)Disclosure Schedule; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet or intranet website, if any, to which each the Lender and the Administrative Agent have has access (whether a commercial, third-party website or whether sponsored by the Administrative AgentLender), including the SEC’s XXXXX website; provided that: that upon Lender’s request the Borrower shall (iA) the Borrowers shall deliver paper copies of such documents to the Administrative Agent Lender or any (B) provide Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier fax or electronic mail) with notice of the posting of any such documents (provided that contemporaneously with each such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investorposting.”
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) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), to the extent obtainable with commercially reasonable efforts, 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 (which certificate may be limited to the extent required by applicable accounting rules or guidelines);
(b) concurrently with not later than five Business Days after the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITAshland Global, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Ashland Global may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) 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;
(f) concurrently with the delivery of each Compliance Certificate referred to in clause (b) of this Section 6.02 that is required as a result of the delivery of financial statements pursuant to Section 6.01(a), a list of the Immaterial Subsidiaries determined as of the last day of the fiscal year of the Borrower to which such Compliance Certificate relates;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except Loan Party or any Subsidiary thereof, to the extent prohibited permitted by confidentiality obligations required by the SEC or any comparable agency)Law;
(fh) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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;
(A) upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by the Borrower, any Subsidiary or any ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan; (iii) all notices received by the Borrower, any Subsidiary or any ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such additional information other documents or governmental reports or filings relating to be any Plan as the Administrative Agent shall reasonably request; and (B) promptly following any request therefor, copies of (i) any documents described in Section 101(k) of ERISA that the Borrower, any Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that the Borrower, any Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan have not been requested, the applicable entity shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(j) within 60 days after the beginning of each fiscal year of the Borrower, a budget for the Borrower in form and detail reasonably satisfactory to the Administrative Agent; provided that the Borrowers shall not be required , but to provide any information include balance sheets, statements of income and sources and uses of cash, for (i) each fiscal quarter of such fiscal year prepared in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or reasonable detail and (ii) each of the two fiscal years of the Borrower immediately following such fiscal year, prepared in summary form, in each case, with appropriate presentation and discussion of the principal assumptions upon which such budgets are based, accompanied by the statement of the chief executive officer, chief financial officer, treasurer or controller of the Borrower to the effect that, to the good faith belief of such officer, the budget is subject to attorney-client privilege or constitutes attorney work producta reasonable estimate for the periods covered thereby and, promptly when available, any significant revisions of such budget;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(hk) concurrently with the delivery of each Compliance Certificate referenced in clause (b) of this Section 6.02 for the last day of each fiscal year of Ashland and the last day of each second fiscal quarter of Ashland, a Perfection Certificate Supplement (or a certificate confirming that there has been no change in information since the date of the Perfection Certificate or latest Perfection Certificate Supplement); and
(l) to the extent the Borrower has one or more Subsidiaries that have been designated as Unrestricted Subsidiaries in accordance with Section 6.15 at such time, concurrently with the delivery of consolidated financial statements referred to in Sections 6.01(a) and (b), the REIT’s related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requirestatements. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s public website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); Internet, or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its that makes a written request to the Borrowers 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) except with respect to current reports on Form 8-K. Except for such Compliance Certificates, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 Furnish to the Administrative Agent, in form and detail acceptable to the Agent, with sufficient copies for each Lender, the following documents:
(a) Intentionally OmittedAs soon as available, but in any event within 30 days after the end of each fiscal quarter of Borrowers, (i) a Covenant Compliance Report (or, in the case of Borrower prepared financial statements for the last fiscal quarter of each Fiscal Year, a draft Covenant Compliance Report) duly executed by a Responsible Officer of Borrowers’ Representative, (ii) a report of any intellectual property and domain names created or acquired during such period, and (iii) a report of any changes in Borrowers’ approved investment policy, and if requested by the Agent, copies of such revised policy;
(b) concurrently Concurrently with the delivery of the financial statements referred pursuant to in Sections 6.01(a7.1(b) and (bc), a duly completed Compliance Certificate signed report, for the previous fiscal quarter or month, as applicable, of Borrowers’ web-sites traffic, click through, and conversions;
(c) Concurrently with the delivery of the financial statements pursuant to Section 7.1(c), an aging report for Borrowers’ accounts receivable and accounts payable, all in form and substance satisfactory to the Agent;
(d) 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;
(e) Any financial reports, statements, press releases, other material information or written notices delivered (i) to the holders of the Subordinated Debt pursuant to any applicable Subordinated Debt Documents and (ii) to the holders of the Permitted Senior Unsecured Notes pursuant to any applicable Permitted Senior Unsecured Notes Documents, in each case to the extent not otherwise required hereunder, as and when delivered to such Persons;
(f) Within 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, income statement and cash flow statement, 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 Borrowers;’ Representative as being based on reasonable estimates and assumptions taking into account all facts and information known (or reasonably available to any Credit Party) by a Responsible Officer of the Borrowers’ Representative; Table of Contents
(cg) 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly Promptly after the same are become publicly available, copies of each annual reportall periodic and other reports, proxy or financial statement or statements and other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file materials filed by RMN with the SEC under Section 13 SEC, or 15(d) of with any national securities exchange, or distributed by RMN or any other Borrower to its shareholders generally, as the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant heretocase may be;
(eh) promptlyAny additional information as required by any Loan Document, and in such additional schedules, certificates and reports respecting all or any event within five (5) Business Days after receipt thereof by any Borrowerof the Collateral, copies of each material notice the items or other material correspondence amounts 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Credit Parties in full or partial payment thereof, and any comparable agency);goods (the sale or lease of which shall have given rise to any of the Collateral) possession of 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 applicable Credit Party and shall be in such form and detail as the Agent may reasonably specify; and
(fi) promptly, such Such additional financial and/or other information regarding the business, financial or corporate affairs of the Borrowers 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, all promptly following such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investorrequest.”
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent (for delivery to each Lender), in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), (i) 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, which certificate may be limited or omitted to the extent required by such accountants under applicable accounting rules or guidelines and (ii) internally prepared backlog reports, each of the foregoing items shall be in form reasonably satisfactory to the Administrative Agent and, as to item (i), certified by the Borrower’s Chief Financial Officer or another Responsible Officer of the Borrower;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended September 30, 2011), (i) a duly completed Compliance Certificate (which, in connection with the financial statements delivered pursuant to Section 6.01(a), shall attach a report setting forth the respective revenues and assets (as such terms are used in the financial statements provided in accordance with Section 6.01) for each Material Subsidiary that is a Guarantor) and (ii) internally prepared backlog reports, which shall be in form reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(c) promptly after any written request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters reports and other audit committee deliveries or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the 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) subject to restrictions imposed by applicable Law, promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 material investigation or possible investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any SubsidiarySubsidiary (including information regarding the corporate and organizational structure of the Borrower and its Subsidiaries), or compliance with the terms of the Loan Documents, as the Administrative Agent or on behalf of any Lender may from time to time reasonably request, all such additional information to be request in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agentwriting; and
(h) concurrently with not later than five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any 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 delivery value of the financial statements referred interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared time upon written request by the REIT’s chief financial officer (or other equivalent financial officer) Administrative Agent, such information and in a format reports regarding such instruments, indentures and with such detail loan and credit and similar agreements as the Administrative Agent may reasonably requirerequest. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided thatthat upon the Administrative Agent’s request: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (commencing with the delivery of the financial statements for the fiscal year ended December 31, 2004), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly, following each issuance of Qualified Preferred Stock, a listing of the names, addresses, fax numbers (if available) and number of shares of Qualified Preferred Stock acquired by each Person in such issuance;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary thereof, copies of each material written 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 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) promptly after the occurrence thereof, and in any event within three Business Days thereof, notice of any Trust Preferred Interest Deferral; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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
Certificates; Other Information. Deliver to the Administrative AgentAgent for delivery to each Co-Lead Arranger and each Lender, in form and detail reasonably satisfactory to the Co-Lead Arrangers:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), (i) 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 relating to the accounting practices of the Borrower or any of its Subsidiaries or any Default resulting from the failure of the Borrower to comply with the requirements of Section 7.11 or 7.12 or, if any such Default shall exist, stating the nature and status of such event setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower, and in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 7.11, a statement of reconciliation conforming such financial statements to GAAP;
(c) promptly after any request by the Administrative Agent any Co-Lead Arranger 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of Indebtedness securities of the Borrower 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 Lender Parties pursuant to any other clause of Section 6.01, this Section 6.02 or Section 6.03;
(f) promptly upon receipt thereof, copies of all notices, requests and other documents (other than routine communications of day-to-day matters) received by the Borrower or any of its Subsidiaries under or pursuant to any Related Document or Material Contract or material instrument, indenture, loan or credit or similar agreement (including notices from the trustee under the Senior Subordinated Debt Documents) and, from time to time upon request by the Co-Lead Arrangers, such information and reports regarding the Related Documents, the Material Contracts and such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
(g) within 10 days after receipt, copies of all Revenue Agent Reports (Internal Revenue Service 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 Borrower or any Subsidiary aggregating $2,500,000 or more;
(A) promptly, but in any event within 10 days after any Loan Party or any ERISA Affiliate knows or has reason to know of the occurrence of any ERISA Event that could reasonably be expected to impose any material liability on any Loan Party, a statement of a Responsible Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date any records, documents or other information must be furnished to the PBGC with respect to any Pension Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information;
(i) promptly, but in any event within 10 days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan;
(j) promptly, but in any event within 30 days after the filing thereof with the IRS, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Pension Plan;
(k) promptly, but in any event within 10 days after receipt thereof by any Loan Party or, to the best knowledge of any Loan Party, any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of withdrawal liability by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause (A) or (B);
(l) promptly after the assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance by the Borrower or any of its Subsidiaries with any Environmental Law that could reasonably be expected to have a Material Adverse Effect;
(m) as soon as available, but in any event within 30 days after the end of each Fiscal Year, a report supplementing Schedules 5.08 and 5.24, including an identification of all owned and leased real property disposed of by the Borrower or any of its Subsidiaries 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;
(n) as soon as available, but in any event within 30 days after the end of each Fiscal Year, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for the Borrower and its Subsidiaries and containing such additional information as any Co-Lead Arranger, or any Lender through the Administrative Agent, may reasonably specify;
(o) promptly and in any event within five (5) Business Days 10 days after receipt thereof by the Borrower or any Borrowerof its Subsidiaries, 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 or other inquiry by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);of its Subsidiaries; and
(fp) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent Co-Lead Arrangers or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;.
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent any Co-Lead Arranger or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent such Co-Lead Arrangers or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) each Co-Lead Arranger and each Lender of the posting of any such documents (provided that such notices may be provided by commercial thirdand provide to each Co-party websites Lead Arranger by electronic mail at electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the direction Borrower shall be required to provide paper copies of the Borrowers). Documents Compliance Certificates required to be delivered pursuant to by Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g.to provide to each Co-Lead Arranger and each of the Lenders. Except for such Compliance Certificates, “PDF” or “TIF”) transmission. The Administrative Agent shall the Co-Lead Arrangers 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Amo Holdings LLC)
Certificates; Other Information. Deliver to Administrative Agent (for distribution by Administrative Agent to each Lender), in form and detail reasonably satisfactory to Administrative Agent and the Administrative AgentRequired Lenders:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by a Responsible Officer of Borrower; which shall include calculation of the Borrowersfinancial covenants set forth in Section 7.09 and (ii) a duly completed Unencumbered Property Certificate;
(b) within thirty (30) days after the end of each fiscal year of Borrower, beginning with the fiscal year ending December 31, 2021, an annual operating forecast of Borrower containing, among other things, pro forma financial statements for the then current fiscal year and updated versions of the pro forma financial projections delivered in connection with Section 4.01(d) hereof;
(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 by the independent accountants of Borrower (or the audit committee of the board of directorsdirectors of Borrower) in respect of Borrower (and, to the extent any such reports, letters or recommendations are prepared separately for any one or more of the REIT Credit Parties, such Credit Party) by independent accountants in connection with the accounts or books of the REIT Borrower (or any Subsidiary, such Credit Party) or any audit of any of themBorrower (or such Credit Party);
(d) promptly after the same are available, (i) copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or Section 15(d) of the Securities and Exchange Act, Act of 1934 or to a holder of any Indebtedness owed by Borrower in its capacity as such holder and not otherwise required to be delivered to the Administrative Agent pursuant heretohereto and (ii) upon the request of Administrative Agent, 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 authorities concerning environmental, health or safety matters;
(e) promptlypromptly upon receipt thereof, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results a copy of any other report or “management letter” submitted by independent accountants to Borrower (except to in connection with any annual, interim or special audit of the extent prohibited by confidentiality obligations required by the SEC or any comparable agency)books of Borrower;
(f) within ten (10) days upon any Responsible Officer of Borrower becoming aware thereof, reports detailing income or expenses of any assets directly owned or operated, or which will be included on the balance sheet for purposes of ASC 810, other than as previously disclosed in Borrower’s Form 10-K, 10-Q or any other publicly available information;
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers or any SubsidiaryCredit Parties, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (through Administrative Agent) may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) promptly following any request therefor, information and (b)documentation reasonably requested by Administrative Agent, the REIT’s consolidated financial covenant projections L/C Issuer or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including the current Patriot Act and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Beneficial Ownership Regulation.
(i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required and provide to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers any of 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) (each. Borrower hereby agrees that 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, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 will deliver same to each Lender), in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersParent (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);
(cb) 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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT 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, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITParent, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) 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 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 clause of this Section 6.02;
(e) as soon as available, and after any request by the Administrative Agent or any Lender 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 (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary or Controlled JV 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary or Controlled JV Subsidiary thereof;
(fg) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any 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 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 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 Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Parent or the Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Parent’s or the Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ Parent’s or 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). Notwithstanding anything contained herein, including in every instance the SEC’s XXXXX website; provided that: (i) Parent and the Borrowers Borrower shall deliver be required to provide paper or emailed copies of such documents the Compliance Certificates required by Section 6.02(a) to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-KCompliance Certificate, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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 Borrowers Parent and each Lender the Borrower hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Parent or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Parent, 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) (each, a “Public Lender”). The Borrowers Parent and the Borrower hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Parent and the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Parent, the Borrower 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 AgentAgent (for distribution to each Lender), in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrowers;Borrower (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or electronic mail and shall be deemed to be an original authentic counterpart thereof for all purposes).
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) or (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 and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (by telecopier fax or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (wi) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (xii) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (yiii) all SEC Reports and 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); (ziv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not designated “Public InvestorSide Information”; and (v) notwithstanding anything herein to the contrary, unless the Borrower otherwise notifies the Administrative Agent, all financial statements delivered pursuant to Sections 6.01(a) and 6.01(b), all certificates, reports, statements and other documents and information delivered pursuant to Section 6.02(a) and 6.02(c) and all notices delivered pursuant to Section 6.03(a) shall be deemed to be suitable for posting on the portion of the Platform designated “Public Side Information”.”
Appears in 1 contract
Samples: Credit Agreement (Diamond Foods 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) Intentionally Omittedconcurrently 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 Event of Default under the financial covenants set forth herein or, if any such Default or 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 6.01(a) and (b) (commencing with the fiscal quarter ending October 1, 2016), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports and registration statements (other than registration statements on Form 10-Q and current reports on Form 8-K S-8 or any successor form thereto) which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any correspondence, notice, statement or report furnished to any holder of debt securities of the Borrower or any Subsidiary thereof with respect to any default or event of default under 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; NYDOCS03/1043960.1466
(e) promptly, and in any event within five (5) Business Days after the Borrower is aware of receipt thereof by the Borrower or any BorrowerSubsidiary 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 or other inquiry by such agency regarding material financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Material Subsidiary; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) 6.02 (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 (within the meaning of the United States Federal and state securities laws) with respect to the Borrowers Borrower or their securities) respective Affiliates, or the respective securities of any of the foregoing (each, a “Public LenderMNPI Information”), and who may be engaged in investment and other market related activities with respect to such Persons’ securities. The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arranger and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) containing any MNPI Information with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the NYDOCS03/1043960.1467 Platform designated “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 not be under any obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Senior Unsecured Bridge Credit Agreement (Avnet 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) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its Registered Public Accounting Firm 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 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants its Registered Public Accounting Firm in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the 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 five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall Borrower shall, upon request, deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that it in its discretion determine are to be made available to Public 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 thereofthereof (provided, however, that all Borrower Materials in the form of press releases and SEC filings shall be deemed to be “PUBLIC” information and shall not be required to be marked “PUBLIC”); (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” or deemed to be “PUBLIC” pursuant to the proviso in clause (w) of this paragraph are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” or deemed to be “PUBLIC” pursuant to the proviso in clause (w) of this paragraph 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 (Media General Inc)
Certificates; Other Information. Deliver to the Administrative Agent (and the Administrative Agent will furnish to each Lender promptly after receipt thereof), in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended July 31, 2020), (i) a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersCompany (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) and (ii) if such financial statements are delivered during any Springing Lien Trigger Period, an updated perfection certificate (which, for the avoidance of doubt, in the case of the absence of any change in any section contained therein from the most recently delivered perfection certificate or supplement thereto, may be satisfied by confirming such absence of change);
(cb) 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 REIT Company by independent accountants in connection with the accounts or books of the REIT Company 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 REITCompany, and copies of all quarterly annual, regular, periodic and special reports on and registration statements, including, without limitation, the Form 10-Q and current reports on Form 8-K , which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the 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;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) within ten (10) days prior to any merger, consolidation, dissolution or other change in entity structure of any Loan Party or any of its Subsidiaries permitted pursuant to the terms hereof, provide notice of such change in entity structure to the Administrative Agent, along with such other information as reasonably requested by the Administrative Agent;
(g) provide notice to the Administrative Agent, not less than ten (10) days prior (or such shorter period of time as agreed to by the Administrative Agent) of any change in any Loan Party’s legal name, state of organization, or organizational existence.
(h) not later than five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any 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 such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
(i) on or prior to October 9, 2020, a consolidated balance sheet of the Company and its Subsidiaries (which, for the avoidance of doubt, shall exclude the Outdoor Products Group Subsidiaries) as at August 31, 2020 after giving effect to the Outdoor Products Group Spin-Off, in form satisfactory to the Administrative Agent and the Required Lenders;
(j) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(k) 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; and
(l) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Company 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 Borrowers and each Lender Each Loan Party hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, SyndTrak 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 Borrowers Loan Parties 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) (each, a “Public Lender”). The Borrowers Each Loan Party hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Loan Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Loan Parties 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 AgentAgent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 5.01(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 6.01(a5.01(a) and (b5.01(b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) 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 5.01 or any other clause of this Section 5.02;
(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;
(g) promptly, and in any event within five (5) Business Days ten days after receipt thereof by any BorrowerLoan 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 (i) any investigation or possible investigation or (ii) other inquiry (other than any routine inquiry in the ordinary course of business) by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(h) as soon as practicable, and in any event within 10 days after the issuance, filing or receipt thereof, or upon obtaining knowledge of a material complaint as provided in (iii) below, (i) copies of any order or notice of the FCC or a court of competent jurisdiction which designates any Station License, or any application therefor, for a hearing or which refuses renewal or extension of, or revokes or suspends the authority of any Broadcasting Station to which the Borrower or any of its Subsidiaries provides services under a Local Marketing Agreement to operate, (except ii) a copy of any citation, notice of violation or order to the extent prohibited by confidentiality obligations required show cause issued by the SEC FCC, (iii) a copy of any material complaint filed by or with the FCC, or a petition to deny any application, in each case with respect to such Borrower or any of its Subsidiaries, and (iv) a copy of any notice or application by the Borrower of any of its Subsidiaries requesting authority to cease broadcasting on any Broadcasting Station for any period in excess of forty-eight (48) hours;
(i) copies of each FCC form 323 Ownership Report (or any comparable agencyform which may be substituted therefore by the FCC) filed with the FCC with respect to each Broadcasting Station owned by Borrower or any of its Subsidiaries as soon as practicable, and in any event within 30 days following (i) a request in writing by the Administrative Agent; (ii) filing such form if such form is not available publicly by accessing the FCC’s worldwide web site (e.g., hxxx://xxxxxxxxx.xxx.xxx/xxxx/cdbs/pubacc/prod/own_search.htm);; or (iii) upon consummation of a Permitted Acquisition; and
(fj) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a5.01(a) or (b) or Section 6.02(d5.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)wxx.xxxxxxxxxxxxxxxxxx.xxx; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (ix) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (iiy) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 5.02(b) to the Administrative Agent. Except for such Compliance Certificates, 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuing Bank materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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) Intentionally Omittedconcurrently 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 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(a7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after any request by the Administrative Agent, documents and other information supporting the calculation of any defined term used in the computation in any Compliance Certificate of the financial covenants set forth in Section 8.12;
(e) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ef) promptly, as soon as available and in any event within five (5) Business Days no later than 75 days after receipt thereof by any the beginning of each fiscal year of the Borrower, copies a consolidated business plan for the Borrower and its Non-Xxxxxxx Subsidiaries prepared by management of each material notice or other material correspondence received from the SEC Borrower, substantially similar in form and detail to the business plans prepared prior to the Closing Date and furnished under the Existing Credit Agreement, but taking into account the US Pipe Contribution, to the Administrative Agent and including balance sheets, and related statements of operations, retained earnings and cash flow (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by to include separate forecasts for Consolidated Capital Expenditures and Consolidated EBITDA), on a quarterly basis for such agency regarding financial or other operational results fiscal year, and a reasonably detailed explanation of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);underlying assumptions with respect thereto; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Non-Xxxxxxx Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a7.01(a) or (b) or Section 6.02(d7.02(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree 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, (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” ”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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
Certificates; Other Information. Deliver to the Administrative AgentAgent and each Lender (which delivery may be effected by posting on an electronic platform as designated by the Administrative Agent or filing with the SEC), in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omittedconcurrently 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 the course of its regular audit of the financial statements of the Company and its Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, but without independent investigation, such accounting firm obtained no knowledge that any Default insofar as it relates to financial or accounting matters has occurred or, if in the opinion of such accounting firm such a Default has occurred, specifying the nature and extent thereof;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersCompany;
(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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REITCompany, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Company may file or be required to file with the SEC including without limitation (i) under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and (ii) with respect to any Internal Control Event required to be so disclosed, in each case, not otherwise required to be delivered to the Administrative Agent pursuant heretoto this Agreement;
(d) promptly after the furnishing thereof, copies of any statement (other than administrative notices) or report furnished to any holder of debt securities of any Borrower or any Subsidiary, the aggregate principal amount outstanding of which is not less than the Threshold Amount, 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;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerBorrower 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 or other similar inquiry (other than routine communications regarding the Company’s filings with the SEC or such agency) by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) Sections 6.01 or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Company 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, SyndTrak 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 Borrowers 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) (each, . 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 “Public Lender”). The Borrowers hereby agree that private offering or is actively contemplating issuing any such securities (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 1 contract
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersParent (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);
(cb) 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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT 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, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITParent, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) 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 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 clause of this Section 6.02;
(e) as soon as available, and after any request by the Administrative Agent or any Lender 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 (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary or Controlled JV 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary or Controlled JV Subsidiary thereof;
(fg) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any 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 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 or Controlled JV Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(i) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; and
(j) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;.
(ga) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which . Except for 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-KCompliance Certificate, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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 Borrowers Parent and each Lender the Borrower hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Parent or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Parent, 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) (each, a “Public Lender”). The Borrowers Parent and the Borrower hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Parent and the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Parent, the Borrower 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 AgentAgent for distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower 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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) 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 REITParent or the Loan Parties, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent or the Loan Parties may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of the Parent or 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;
(d) promptly, and in any event within five (5) Business Days after receipt thereof by the Parent or any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC or the Australian Securities and Investments Commission (or comparable agency in any other 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Parent or any comparable agency);Loan Party or any Subsidiary thereof; and
(fe) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Parent or 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Parent or such Loan Party posts such documents, or provide provides a link thereto on the Borrowers’ Parent’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Borrower Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents and (provided that such notices may be provided by commercial third-party websites by electronic mail at ii) the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered Borrower Agent shall provide to the Administrative Agent or any Lender by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents upon its request to the Borrower Agent to deliver such electronic versions. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper electronic copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower Agent with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its electronic copies of such documents. 100 Xxxxx Xxxxxx Credit and Guaranty Agreement AMERICAS/2022758566.11 The Borrowers Parent and each Lender the Loan Parties hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Parent and the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Parent and each Loan Party 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) (each, a “Public Lender”). The Borrowers Parent and the Loan Parties hereby agree that so long as the Parent or any Loan Party 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Parent and the Loan Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Parent and each Loan Party or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 and Guaranty Agreement (James Hardie Industries PLC)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants (which certificate may be limited or eliminated to the extent required by accounting rules or guidelines) 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 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersREIT (which delivery may, unless the Administrative Agent, or a Lender through 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);
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, (x) copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders or other equityholders of the REIT, (y) copies of each annual report, proxy, financial statement or other financial report sent to the limited partners of the Borrower, and (z) copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT may file any Loan Party or be required to file any Subsidiary thereof files with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any material 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 clause of this Section 6.02;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice or other material written 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(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 reasonably be expected to have a Material Adverse Effect;
(h) as soon as available, but in any event within 30 days after the end of each fiscal year of the REIT, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and containing such additional information as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify; and
(i) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers any Loan Party 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 REIT posts such documents, or provide provides a link thereto on the Borrowers’ REIT’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower (through the Administrative Agent) to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender (through the Administrative Agent) and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. The Borrowers Borrower and each Lender the REIT hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers REIT or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 The Borrower will deliver to the Administrative AgentAgent and each Lender:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 5.01(a), but only to the extent consistent with applicable accounting industry policies generally followed by independent certified public accountants, a certificate of its independent certified public accountants stating that in making the examination necessary therefor no knowledge was obtained of any Default arising from a breach under Section 6.12 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(a5.01(a) and (b), a duly completed Compliance Certificate certificate in the form of Exhibit C signed by a Responsible Officer of the BorrowersBorrower (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12, and (iii) together with the financial statements referred to in Sections 5.01(a) and 5.01(b), providing supplemental information pertaining to Collateral and property of the Loan Parties as required pursuant to Section 5.14(c);
(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 shareholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements that the any request by Loan Party may file or be required to file with the Administrative Agent SEC or any LenderGovernmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, and not otherwise required to be delivered pursuant hereto;
(d) promptly after the furnishing thereof, copies of any material request or notice received by any Loan Party, or any statement or report furnished by any Loan Party 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 pursuant hereto;
(e) promptly 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 by such agency regarding financial or other operational results of the Borrower or any Subsidiary thereof;
(f) 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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT or any SubsidiaryLoan Party, or any audit of any of them;them as the Agent or any Lender (through the Agent) may from time to time reasonably request; and
(dg) promptly after the same are availablefollowing any request therefor, copies of each annual report, proxy or financial statement or (i) such other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(f) promptly, such additional information regarding the operations, business, properties, liabilities (actual or contingent), condition (financial or corporate affairs otherwise) or prospects of the Borrowers or any SubsidiaryLoan Party, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (through the Agent) may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege information and documentation reasonably requested by the Agent or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice any Lender for purposes of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary compliance with applicable “know your customer” requirements under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (PATRIOT Act or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireAnti-Money Laundering Laws. Documents required to be delivered pursuant to Section 6.01(a5.01(a) or (b) or Section 6.02(d5.02(c) or (d) (to the extent any such documents are included in materials otherwise filed with the SECSEC (or comparable agency in any applicable non-U.S. jurisdiction)) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto materials are publicly available as posted on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 Electronic Data Gathering, Analysis and Retrieval system (as such address may be updated from time to time upon at least ten (10XXXXX) Business Days prior written notice to the Administrative Agent); or similar foreign service, or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (iA) upon written request by the Borrowers Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (iiB) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites and provide to the Agent by electronic mail at the direction electronic versions (i.e., soft copies) of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmissionsuch 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 Borrowers Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such document to it or and maintaining its copies of such documents. The Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersCompany;
(cb) 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 REIT Company by independent accountants in connection with the accounts or books of the REIT Company 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 material report or communication sent to the stockholders of the REITCompany, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any material 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;
(e) promptly, and in any event within five (5) Business Days 15 days after receipt thereof by any BorrowerLoan 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 or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to if the Borrowers Administrative Agent requests the 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) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers Company 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 Borrowers and each Lender Any information received by the Administrative Agent pursuant to Section 6.01 or 6.03, or this Section 6.02 shall be promptly delivered to the Lenders by the Administrative Agent. Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers any Borrower or their its securities) (each, a “Public Lender”). The Borrowers Each Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” ”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (for delivery to each Lender), in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), (i) 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, which certificate may be limited or omitted to the extent required by such accountants under applicable accounting rules or guidelines and (ii) internally prepared backlog reports, each of the foregoing items shall be in form reasonably satisfactory to the Administrative Agent and, as to item (i), certified by the Borrower’s Chief Financial Officer or another Responsible Officer of the Borrower;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2014), (i) a duly completed Compliance Certificate (which, in connection with the financial statements delivered pursuant to Section 6.01(a), shall attach a report setting forth the respective revenues and assets (as such terms are used in the financial statements provided in accordance with Section 6.01) for each Material Subsidiary that is a Guarantor) and (ii) internally prepared backlog reports, which shall be in form reasonably satisfactory to the Administrative Agent and signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(c) promptly after any written request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters reports and other audit committee deliveries or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptlypromptly after the 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 in not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any event within five other clause of this Section 6.02;
(5f) Business Days subject to restrictions imposed by applicable Law, promptly after receipt thereof by any BorrowerLoan 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 material investigation or possible investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any SubsidiarySubsidiary (including information regarding the corporate and organizational structure of the Borrower and its Subsidiaries), or compliance with the terms of the Loan Documents, as the Administrative Agent or on behalf of any Lender may from time to time reasonably request, all such additional information to be request in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agentwriting; and
(h) concurrently with promptly after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any 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 delivery value of the financial statements referred interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared time upon written request by the REIT’s chief financial officer (or other equivalent financial officer) Administrative Agent, such information and in a format reports regarding such instruments, indentures and with such detail loan and credit and similar agreements as the Administrative Agent may reasonably requirerequest. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided thatthat upon the Administrative Agent’s request: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 AgentAgent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omittedconcurrently 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, with respect to Section 7.11, 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 6.01(a) and 6.01(b) (bcommencing with the delivery of the financial statements for the Fiscal Year ended June 30, 2010), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptlyif, and in any event within five (5) Business Days after receipt thereof Fiscal Quarter, any direct or indirect Subsidiary of the Borrower shall be created, formed or acquired by the Borrower or by any Borrowerof its Subsidiaries or shall cease to be an inactive Subsidiary, copies of each material notice or other material correspondence received from furnish in the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry Compliance Certificate for such Fiscal Quarter information identifying such Subsidiary and setting forth with respect to such Subsidiary the information required by such agency regarding financial or other operational results of any Borrower (except Section 5.13 with respect to the extent prohibited by confidentiality obligations Subsidiaries of the Borrower as of the Closing Date; provided, however, that such information shall not be required by the SEC or any comparable agency);for inactive Subsidiaries unless and until such inactive Subsidiaries shall become active Subsidiaries; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b6.01(b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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, including the SEC’s XXXXX website; provided however, that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Notwithstanding anything contained herein, if so required by the Administrative Agent, 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (aA) the Administrative Agent and/or the Joint Lead Arrangers ArrangerArrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak IntraLinks or another similar electronic system (the ““ Platform”) ), and (bB) 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 Borrowers Borrower or their securities) (eachits Affiliates, a “Public Lender”)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 Borrowers Borrower hereby agree 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: (w1) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x2) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArrangerArrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y3) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z4) the Administrative Agent and the Joint Lead Arrangers ArrangerArrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Meredith Corp)
Certificates; Other Information. Deliver to the Administrative Agent:Agent (for distribution to each Lender):
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal year ended December 31, 2022), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersParent 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 any Borrower that shall have become effective during the fiscal quarter covered by such Compliance Certificate (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);
(cb) 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 REIT Guarantor by independent accountants in connection with an audit of the accounts or books of the REIT or any Subsidiary, or any audit of any of themGuarantor;
(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 REITREIT Guarantor, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT Guarantor may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five (5) Business Days after receipt thereof by the REIT Guarantor or any BorrowerSubsidiary 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC REIT Guarantor or any comparable agency)Subsidiary thereof;
(fe) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(hf) concurrently promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent, any L/C Issuer or any Lender for purposes of compliance with the delivery of the financial statements referred to in Sections 6.01(a) applicable “know your customer” and (b)anti-money-laundering rules and regulations, including, without limitation, the REIT’s consolidated financial covenant projections for Patriot Act, the current Canadian AML Acts and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireBeneficial Ownership Regulation. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 REIT Guarantor posts such documents, or provide provides a link thereto thereto, on the Borrowers’ REIT Guarantor’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Parent Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver that requests such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Parent Borrower shall notify the Administrative Agent (by telecopier or electronic mail) ), which shall notify each Lender, of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and, upon request, provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers and each Lender Credit Parties hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Credit Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Credit Parties or 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”). The Borrowers Credit Parties hereby agree that so long as any Credit Party 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; , (x) by marking Borrower Materials “PUBLIC,” the Borrowers Credit Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Credit Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); ) (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 InvestorSide Information.” Notwithstanding the foregoing, the Credit Parties shall be under no obligation to mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to Majority Lenders and with sufficient copies for each Lender:
(a) Intentionally Omittedconcurrently 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 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by a Responsible Officer of Borrower, (ii) a report of all loans made by any Loan Party to any officers, directors, board members, employees, shareholders or Affiliates of any Loan Party during such previous fiscal quarter, (iii) a report of all Investments made any Loan Party in suppliers and customers of each of the BorrowersLoan Parties during the previous fiscal quarter, (iv) a report of all of all transactions between the Loan Parties and their Affiliates during such previous fiscal quarter, (v) a report of all bonus compensation paid or awarded to any Key Manager by any member of the Consolidated Group during the previous fiscal quarter and (vi) a detailed list, by category, of all Excluded Assets;
(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 REIT Borrower or Parent by independent accountants in connection with the accounts or books of the REIT Borrower, Parent or any Subsidiaryother member of the Consolidated Group, or any audit of any of them;
(d) promptly within five (5) days after the same are available, and to the extent the same are made public in accordance with the Exchange Act, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REIT, following documents of Borrower or any other member of the Consolidated Group not otherwise required to be delivered to Administrative Agent pursuant to this Agreement:
(i) proxy statements and copies of all annual reports to shareholders;
(ii) annual reports on Form 10-K;
(iii) quarterly reports on Form 10-Q and Q; and
(iv) each current report on Form 8-K (other than current reports on Form 8-K which relating only to “Other Events” under Item 5 of Form 8-K or other items defined as “Other Events” as may be assigned in the REIT future) and transaction statements On Schedule TO, 13D or 13E-3 that such Person may file or be required to file with under the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrowermember of the Consolidated Group, 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 formal investigation or other inquiry formal inquiries not in the ordinary course by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) as soon as available, but in any event no later than (i) twenty (20) days after the end of each calendar quarter, a preliminary Borrowing Base Report, which preliminary Borrowing Base Report shall include a detailed calculation of the Borrowing Base, together with copies of accounts statements during the preceding three (3) months from each depository maintaining a deposit account that is subject to a Control Agreement, and (ii) forty five (45) days after the end of each calendar quarter, a final Borrowing Base Report, which final Borrowing Base Report shall include a detailed calculation of the Borrowing Base, together with any new account statements covering deposit accounts described above;
(g) as soon as available, but in any event no later than three (3) Business Days after the end of each week, (i) a report of all Asset Sales, and all sales and closings of Aggregate Real Property (on an asset-by-asset basis, including Units and Lots) from the previous week (including gross sales prices, deductions therefrom to reach Net Proceeds and estimated net sale prices with respect to each such transaction), (ii) a summary of the current cash balances in the deposit accounts of the Loan Parties that are subject to Control Agreements and (iii) such additional information as may be reasonably requested by Administrative Agent or otherwise agreed to by the parties hereto;
(h) as soon as available, but in any event no later than ten (10) Business Days after the end of each calendar month, a report of (i) all construction activity, together with a report of all sales and closings of Units and Lots from the previous month, with such additional information as may be agreed to by the parties hereto, (ii) all acquisitions of any fee or other interest in Real Property during such previous calendar month, (iii) all Distributions made during such calendar month, (iv) all expenditures or series of related expenditures outside of the Core Businesses in excess of $100,000 during such previous calendar month, (v) all repurchases and payments of the Senior Unsecured Notes during such previous calendar month, together with the aggregate outstanding principal amount of the Senior Unsecured Notes as of the last day of such calendar month and (vi) all drawdowns or borrowings under any Permitted Construction Indebtedness during such previous calendar month;
(i) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) 6.01 or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an a secure 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), including the SEC’s XXXXX website; provided that: :
(i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers that requests 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 Lender and
(ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required and provide to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Notwithstanding anything contained herein, in every instance Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to Administrative Agent. Except for such Compliance Certificates, 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 Borrowers 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 Borrowers ;
(j) promptly upon and each Lender hereby acknowledge that in any event within five (a5) days after receipt thereof, copies of all notices delivered to Borrower or any other member of the Consolidated Group under the Indentures, the Permitted Construction Indebtedness and the Existing Secured Indebtedness; and
(k) at least five (5) business days’ advance notice of any refinancing of (i) the Administrative Agent and/or Indebtedness under the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by Indentures or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”ii) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”Permitted Construction Indebtedness
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (William Lyon Homes)
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) Intentionally Omitted;
no later than five (b5) concurrently with days after the delivery of the financial statements referred to in Sections Section 6.01(a), a certificate of its independent certified public accountants auditing such financial statements that addresses either (i) whether in making the examination necessary therefor or (ii) through performance of other acceptable procedures under professional auditing standards, such firm obtained knowledge of any Event of Default under Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a) and (bSection 6.01(b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBV Borrower (which shall set forth reasonably detailed calculations (i) demonstrating compliance with Section 7.11, if applicable, and (ii) in the case of any delivery of financial statements under Section 6.01(a) in respect of any fiscal year ending on or after December 31, 2012, of Excess Cash Flow for 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are publicly available, copies of each annual reportall annual, proxy regular, periodic and special reports and registration statements which BV Borrower or financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file any Restricted Subsidiary filed with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary course of business) from, or material statement or material report furnished to, any holder of debt securities of any Loan Party or of any of its 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;
(e) promptly, and in any event within five (5) Business Days promptly after the receipt thereof by any BorrowerLoan Party or any of its Subsidiaries, copies of each material notice or other material written correspondence received from the SEC (or comparable agency in any applicable non-U.S. US jurisdiction) concerning any investigation or possible material investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agencyof its Subsidiaries;
(f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), (i) a report supplementing Schedule 5.07(c) hereto, including, in the case of supplements to Schedule 5.07(c), an identification of all owned Material Real Property Disposed of by any Loan Party since the delivery of the last supplements and a list and description of all Material Real Property acquired by any Loan Party or its Restricted Subsidiaries since the delivery of the last supplements (including the street address (if available), county or other relevant jurisdiction, state or other relevant jurisdiction, 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);
(fg) promptly after any Borrower has notified the Administrative Agent of any intention 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), a duly completed copy of IRS Form 8886 or any successor form; and
(h) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b), Section 6.01(b), Section 6.02(c) or Section 6.02(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 BV Borrower posts such documents, or provide provides a link thereto on the Borrowers’ BV Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ BV Borrower’s behalf on an Internet IntraLinks/IntraAgency or intranet 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), including the SEC’s XXXXX website; provided that: (iA) upon the Borrowers request of the Administrative Agent, the BV Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers BV Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Except for Compliance Certificates, 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 Borrowers BV Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it of or maintaining its copies of such documents. The Borrowers and each Lender BV Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers BV Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers BV Borrower or their its securities) (each, a “Public Lender”). The Borrowers BV Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers BV Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such the Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers BV Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07)laws; (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Private Investor.”
Appears in 1 contract
Samples: Credit Agreement (Sensata Technologies Holding N.V.)
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders, with sufficient copies for each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a7.01(a) and (b), a duly completed Compliance Certificate (including detailed calculations and reconciliations to GAAP if Agreement Accounting Principles differ from GAAP at the time of such Compliance Certificate) signed by a Responsible Officer of the BorrowersBorrower (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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, Act of 1934 or 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;
(ec) promptly, and in any event within five (5) Business Days ten days after receipt thereof by any BorrowerLoan 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. non‑U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Subsidiary thereof; and
(fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a7.01(a) or (b) or Section 6.02(d7.02(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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 third‑party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Borrower with any such request for delivery by a Lender for deliveryLender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will MLPF&S may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers it hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers MLPF&S and the Lenders to treat such Borrower Materials as either publicly available not containing any material non‑public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers MLPF&S shall be entitled to treat any Borrower Materials (other than SEC Reports) 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
Certificates; Other Information. Deliver to the Administrative Agent:Agent (for distribution to each Lender):
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ending June 30, 2018), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersOfficer;
(cb) 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 REIT Guarantor by independent accountants in connection with an audit of the accounts or books of the REIT 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, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITGuarantor, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT Guarantor may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five (5) Business Days after receipt thereof by the Guarantor or any BorrowerSubsidiary 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 or other inquiry by such agency regarding financial or other operational results of the Guarantor or any Borrower Subsidiary thereof;
(except to the extent prohibited by confidentiality obligations required e) promptly following any request therefor, information and documentation reasonably requested by the SEC Administrative Agent or any comparable agency);Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations and Anti-Money Laundering Law, including the Patriot Act and the Beneficial Ownership Regulation; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Guarantor posts such documents, or provide provides a link thereto thereto, on the Borrowers’ Guarantor’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver that requests such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (by telecopier or electronic mail) ), which shall notify each Lender, of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and, upon request, provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Credit Parties hereby acknowledge that (a) the Administrative Agent Agent, the Bookrunners and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Credit Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Credit Parties or 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”). The Borrowers Credit Parties hereby agree that so long as any Credit Party 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; , (x) by marking Borrower Materials “PUBLIC,” the Borrowers Credit Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersBookrunners, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Credit Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); ) (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent Agent, the Bookrunners and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 1 contract
Certificates; Other Information. Deliver The Parent will deliver to the Administrative AgentAgent for distribution to each Lender:
(a) Intentionally Omitted;
(bi) within 90 days after the end of the fiscal year of the Parent and (ii) concurrently with the delivery of the financial statements of the Credit Parties, other than Parent, referred to in Sections 6.01(aSECTION 5.01(a) and (bSECTION 5.01(b), a duly completed Compliance Certificate certificate signed by a Responsible Officer of the Borrowers;
Parent (ci) promptly after certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any request by the Administrative Agent action taken or any Lenderproposed to be taken with respect thereto, copies of any and (ii) setting forth reasonably detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the REIT by independent accountants in connection calculations demonstrating compliance with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) SECTION 6.12; promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other material report or communication sent to the stockholders shareholders of the REITParent, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT Parent or any Subsidiary may file or be required to file with the SEC under Section 13 or 15(d) any Governmental Authority succeeding to any or all of the Securities and Exchange Actfunctions of the SEC, or with any national securities exchange, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(eb) promptlypromptly after the furnishing thereof, copies of any material request or notice received by the Parent or any Subsidiary, or any statement or report furnished by the Parent or any Subsidiary to any holder of debt securities of the Parent or any Subsidiary, pursuant to the terms of any indenture, loan or credit or similar agreement and in any event within five not otherwise required to be furnished pursuant hereto;
(5c) Business Days promptly after receipt thereof by the Parent or any BorrowerSubsidiary, 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 or other similar inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Parent or any comparable agency);Subsidiary thereof; and
(fd) promptlypromptly following any request therefor, (i) such additional other information regarding the businessoperations, business or financial or corporate affairs condition of the Borrowers Parent or any Subsidiary, or compliance with the terms of the Loan Credit Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request, all such additional ; or (ii) information to be in form and detail documentation reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to requested by the Administrative Agent or any Lender for purposes of compliance with the Lenders (or their designated representative) is then prohibited by law or Beneficial Ownership Regulation, any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary other applicable “know your customer” requirements under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)Bribery Act, the REIT’s consolidated financial covenant projections for FCPA, the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (PATRIOT Act or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireapplicable anti-money laundering laws. Documents required to be delivered pursuant to Section 6.01(aSECTION 5.01(a) or (bSECTION 5.01(b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SECSECTION 5.02(b) may be delivered electronically and and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto materials are publicly available as posted on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 Electronic Data Gathering, Analysis and Retrieval system (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative AgentXXXXX); or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Parent shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered material documentation and provide to the Administrative Agent by electronic image scan mail versions (e.g.i.e., “PDF” or “TIF”with soft copies) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: Letter of Credit Facility Agreement (Enstar Group LTD)
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) Intentionally Omittedconcurrently 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 the course of its audit (without any obligation to conduct any other independent investigation) no knowledge was obtained of any Default with the terms, covenants, provisions or conditions of Section 8.15 in so far as they relate to accounting matters 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(aSECTIONS 7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 Manager of the board of directors) of the REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower (excluding customary and routine correspondence regarding distributions or financial statements), and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;; and
(e) promptlypromptly after the Borrower has notified the Administrative Agent of any intention 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), and a duly completed copy of IRS Form 8886 or any successor form;
(f) as soon as available, but in any event within five thirty (530) Business Days days after receipt thereof by any Borrower, copies the end of each material notice or other material correspondence received from calendar month (and, upon the SEC occurrence and during the continuation of a Default, on a more frequent basis if requested by the Administrative Agent), a duly completed certificate (or comparable agency the "MONTHLY REPORTING CERTIFICATE"), 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 Borrower (except form and substance satisfactory to the extent prohibited Administrative Agent, setting forth in detail as of the last Business Day of such month (i) the Working Capital Outstandings, the Construction in Progress Amount and the calculations thereof, and (ii) the aggregate amount of Equipment Advances, signed by confidentiality obligations required by a Responsible Officer of the SEC or any comparable agency);Borrower; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(aSECTION 7.01(a) or (b) or Section 6.02(dSECTION 7.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower's website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)SCHEDULE 11.02; or (ii) on which such documents are posted on the Borrowers’ Borrower's behalf on an Internet IntraLinks/IntraAgency or intranet 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), including the SEC’s XXXXX website; provided PROVIDED that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.I.E., “PDF” or “TIF”soft copies) transmissionof 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 and each of the Lenders. Except for such Compliance Certificates, 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 further distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes and which Compliance Certificate need not include financial ratio calculations unless such calculations are necessary for determining compliance with any financial ratio requirement set forth herein or in any Loan Document); provided that, for the avoidance of doubt, no calculation of financial ratios shall be required in a Compliance Certificate in connection with any incurrence test unless specifically set forth elsewhere herein;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file file, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptlypromptly after the furnishing thereof, copies of 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 any Indebtedness of any Loan Party or of any of its Subsidiaries in a principal amount greater than the Threshold Amount and in not otherwise required to be furnished to the Lenders pursuant to any event within five other clause of this Section 6.02;
(5d) Business Days promptly after the receipt thereof by any BorrowerLoan Party or any of its Subsidiaries, 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 material investigation or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agencyof its Subsidiaries;
(e) reasonably promptly after the assertion or occurrence thereof, notice of any action arising under any Environmental Law or otherwise relating to any Hazardous Material against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) a report supplementing Schedule 5.16 (in connection with the delivery of the annual financial statements only) and Schedule 5.08(b) hereto, including, in the case of supplements to Schedule 5.08(b), an identification of all Material Real Property disposed of by any Loan Party 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 (if available), county or other relevant jurisdiction, state and record owner) and (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);
(fg) copies of any notice of default under, and any material amendment, supplement, waiver or other modification of, the First Lien Credit Agreement;
(h) promptly upon receipt 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 by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; and
(i) promptly, such additional information regarding the business, legal, financial or corporate affairs or operations of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender the Collateral Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or 6.01 and Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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. Notwithstanding the foregoing and anything herein to the contrary, to the extent that a direct or indirect parent of the Borrower becomes a public company that files periodic reports with the SEC in accordance with Section 13 or 15(d) of the Exchange Act, the documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(b) shall be deemed to have been delivered on the date the Forms 10-K (in the case of Sections 6.01(a) and 6.02(b)), 10-Q (in the case of Sections 6.01(b) and 6.02(b)) or 8-K (in the case of Section 6.02(b)) are filed with the SEC. The Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Collateral Agent materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower and its Affiliates, or their 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”). The Borrowers Borrower hereby agree agrees that it will identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersCollateral Agent, the L/C Issuers Arrangers 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 Borrowers or Borrower, its Subsidiaries and their respective securities for purposes of United States Federal federal and state securities laws Laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” Platform
(a) shall contain any material non-public information with respect to Holdings, the Borrower, its Subsidiaries and their respective securities for purposes of United States federal and state securities laws and (zii) authorizes the Administrative Agent Agent, the Collateral Agent, the Arrangers and the Joint Lead Arrangers shall be entitled Lenders to treat any all Borrower Materials (other than SEC Reportsdelivered pursuant to Section 6.01(a), 6.01(b) that are or 6.02(a) as not marked “PUBLIC” containing any material non-public information with respect to Holdings, the Borrower, its Subsidiaries and their respective securities for purposes of United States federal and state securities Laws and as being suitable only for posting on a portion of the Platform not designated “distribution to Public InvestorLenders.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omittedconcurrently 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 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended on or about June 30, 2009), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(ci) promptly as soon as possible and in any event within 45 days after any request by the Administrative Agent end of each fiscal quarter ending on or any Lenderabout September 30, copies a certification from a Responsible Officer as to of any detailed audit reportsthe Debt to Capitalization Ratio as of the end of such fiscal quarter; and (ii) at Borrower’s election following the end of a fiscal quarter other than the fiscal quarter ending as of September 30, management letters or recommendations submitted a certification from a Responsible Officer as to the board of directors (or the audit committee Debt to Capitalization Ratio as of the board end of directors) of the REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of themsuch fiscal quarter;
(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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan (e.g.mail electronic versions ( i.e. , “PDF” or “TIF”soft copies) transmissionof such documents and the Administrative Agent shall thereafter notify the Lenders. 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 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 Borrowers 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 further delivery to each Lender, in form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omitted;
(bi) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)) and (ii) promptly (and in any event no later two (2) Business Days) upon the consummation of the Sirtex Acquisition, a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or e-mail and shall be deemed to be an original authentic counterpart thereof for all purposes);
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five (5) ten Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(fe) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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 requestrequest (it being understood and agreed that, all such additional information notwithstanding anything to be the contrary in form and detail reasonably satisfactory to Administrative Agent; provided that this Agreement, none of the Borrowers shall not Borrower or any Subsidiary will be required to provide disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter requested under this Section 6.02 that (ix) constitutes non-financial trade secrets or non-financial proprietary information, (y) in respect of which disclosure to the Administrative Agent or the Lenders any Lender (or their designated representativerespective representatives or contractors) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries Law, or (iiz) is subject to attorneya third-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireparty confidentiality agreement. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) or (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-Kif requested by the Administrative Agent or any Lender (through the Administrative Agent), the Borrowers Borrower shall notify the Administrative Agent or any such Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that if the Administrative Agent has not posted such notices may be provided by commercial third-party websites by electronic mail at documents on the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(bBorrower’s behalf) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such it will use commercially reasonable efforts to identify that portion of the Borrower Materials (other than SEC Reports) that are to be made available to Public Lenders and that 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information.” For the avoidance of doubt, it is acknowledged and agreed that, as of the Closing Date, none of the Lenders is a Public Lender. Notwithstanding the foregoing, the Borrower shall be under no obligation to mxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to the Lenders:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower (in its capacity as such); 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), 6.01(b) a duly completed Compliance Certificate signed certificate by a the Responsible Officer confirming compliance with the Leverage Ratio and the Debt Service Coverage Ratio for the most recently ended fiscal quarter and providing for a detailed calculation of the Borrowerssuch financial ratios;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual reportall annual, proxy or financial statement or other report or communication sent to the stockholders of the REITregular, periodic and copies of all quarterly special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five fifteen (515) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(e) promptly after any request of the Collateral Agent, any information the Collateral Agent may require regarding the Collateral and the compliance of the Loan Parties with the terms of any Collateral Document;
(f) promptly, such additional information regarding promptly upon the business, financial or corporate affairs Borrower no longer having a restriction under any of the Borrowers 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, all such additional information to be its Contractual Obligations identified in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required Schedule 5.24 to provide any information (i) in respect of which disclosure Cash Collateral pursuant to Section 2.03(l), deliver a written notice to the Administrative Agent or the Lenders (or their designated representative) is rescinding each Cash Collateral Certificate then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work productin effect;
(g) promptly after the occurrence thereof, notice any request of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the CodeAdministrative Agent, if all documentation and to the extent other information required by applicable Law, such notice to be in form and detail reasonably satisfactory to the Administrative Agent, the Collateral Agent or any Lender in order for such Person to comply with applicable "know your customer" and anti‑money laundering rules and regulations, including the Patriot Act; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents documents required to be delivered pursuant to Section 6.01(a) or (b6.01(b) or Section 6.02(d6.02(c) (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower's website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior 11.02 and provides written notice thereof to the Administrative Agent); or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers and Joint Bookrunners will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Loan Parties hereunder (collectively, “"Borrower Materials”") by posting the Borrower Materials on IntraLinks, SyndTrak Debtdomain, 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “"PUBLIC,” " the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArrangers and Joint Bookrunners, the Lenders and the L/C Issuers 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 Borrowers Loan Parties 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.08); (y) all SEC Reports and all Borrower Materials marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated “"Public Investor;” Side Information"; and (z) the Administrative Agent and the Joint Lead Arrangers and Joint Bookrunners shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 and Guaranty Agreement (Atlantica Yield PLC)
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (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) 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, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(c) promptly after the furnishing thereof, copies of any request requests or notices received by any Loan Party (other than in the Administrative Agent ordinary course of business), statement or report furnished to any holder of any Indebtedness of any Loan Party or of any of its Subsidiaries 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 receipt thereof by any Loan Party or any Lenderof its Subsidiaries, 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 or any of its Subsidiaries;
(e) reasonably promptly after the assertion or occurrence thereof, notice of any action arising under any Environmental Law or otherwise relating to any Hazardous Material against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) a report supplementing Schedule 5.16 (in connection with the delivery of the annual financial statements only) and Schedule 5.08(b) hereto, including, in the case of supplements to Schedule 5.08(b), an identification of all Material Real Property disposed of by any Loan Party 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 (if available), county or other relevant jurisdiction, state, and the record owner and (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 2.03(b);
(g) copies of any notice of default under, and any material amendment, supplement, waiver or other modification of, the ABL Facility or the First Lien Credit Agreement;
(h) promptly upon receipt 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;; and
(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 REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fi) promptly, such additional information regarding the business, legal, financial or corporate affairs or operations of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, the Collateral Agent or any Lender (through the Administrative Agent) may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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, including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Collateral Agent materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”; all other Lenders, “Private Lenders”) 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 Borrowers Borrower and the Target and their respective Affiliates, or their 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”). The Borrowers Borrower hereby agree agrees that it will identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”marked
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) Intentionally Omittedconcurrently 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 6.01(a) and (b6.01(b), commencing with the fiscal quarter ended September 30, 2023, a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower which shall, among other things, (i) demonstrate compliance with the covenants set forth in Section 7.11 and (i) update Schedule 5.11, as applicable;
(c) promptly after the same are available, copies of each annual report, each material proxy or material financial statement or other material report or communication sent to the public equityholders of any Loan Party or any Subsidiary, and copies of all material annual, regular, periodic and special reports and material registration statements which a Loan Party or any Subsidiary 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 LenderAgent, copies of any material 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act and the Beneficial Ownership Regulation;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by the any BorrowerLoan Party or any Subsidiary, 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 or other material inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b6.01(b) or Section 6.02(d6.02(c) (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 a Loan Party posts such documents, or provide provides a link thereto on the Borrowers’ such Loan Party’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ a Loan Party’s behalf on an Internet or intranet websitewebsite (including xxx.xxx.xxx/xxxxx.xxxxx), if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-third party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers a Loan Party shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers such Loan Party to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers such Loan Party shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers any Loan Party 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their 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 for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Delayed Draw Term Loan Credit Agreement (Newmark Group, Inc.)
Certificates; Other Information. Deliver The Borrower shall deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended March 31, 2017), a duly completed Compliance Certificate signed (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), including a Responsible Officer calculation, in form and substance reasonably satisfactory to the Administrative Agent, of Availability as of the Borrowerslast day of the fiscal period covered by such Compliance Certificate;
(b) on a quarterly basis (and in any case within 15 Business Days after the last day of each quarter), or more frequently if requested by the Administrative Agent upon the occurrence and during the continuance of a Default or a Material Event, a Borrowing Base Certificate;
(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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any material statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any material 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;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by the Borrower or any BorrowerSubsidiary 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 or other inquiry by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency)Subsidiary thereof;
(f) promptly, and in any event, within five (5) Business Days after receipt thereof by a Loan Party, any material amendments, consents or waivers with respect to any Eligible Loan Asset or Eligible Ground Net Lease Asset and entered into or delivered on or after the Closing Date; and
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, or with respect to any Eligible Loan Asset, Eligible Ground Net Lease or Collateral, in each case, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) or (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are requested on not less than three (3) Business Days’ notice to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 Furnish to the Administrative AgentAgent (either electronically or with sufficient copies for distribution by the Administrative Agent to each Lender) or, in the case of clause (d), to the relevant Lender:
(a) Intentionally Omittedwithin 5 Business Days after the delivery of the audited financial statements referred to in Section 6.1(a)(i), a certificate of the independent certified public accounting firm reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default (it being understood that (i) such certificate shall only be required if delivery by such independent certified public accounting firm of such a certificate is not prohibited by its policies and (ii) any such certificate may be limited in scope and qualified in accordance with customary practices of the accounting profession), except as specified in such certificate;
(b) concurrently with within 5 Business Days after the deadline for the delivery of the any financial statements referred pursuant to in Sections 6.01(a) and (bSection 6.1(a), (i) a duly completed Compliance Certificate signed by certificate of a Responsible Officer of the BorrowersBorrower stating that such Responsible Officer has obtained no knowledge of any continuing Default or Event of Default except as specified in such certificate and (ii) a Compliance Certificate containing all information and calculations necessary for determining compliance by the Borrower with Section 7.1 as of the last day of the fiscal quarter or fiscal year of the Borrower;
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly within 10 days after the same are availablefiled with the SEC (unless posted on the SEC’s website at wxx.xxx.xxx or any replacement website), copies of each annual reportall reports and filings on Forms 10-K, proxy or financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which that the REIT Borrower may make to, or file or be required to file with with, the SEC under Section 13 or 15(d) SEC, including any request of an extension of time for the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;filing of any such reports; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fd) promptly, such additional financial and other information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;.
(ge) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) unless otherwise directed by the Borrower, the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers Issuing Bank materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak IntraLinks or another similar electronic system (the “Platform”) ), subject to confidentiality undertakings reasonably acceptable to the Borrower and the Arranger, 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 Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers Issuing Bank and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07)laws; (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”” Notwithstanding any of the foregoing, if the Borrower also delivers any materials and/or information pursuant to this Section 6.2(e) in paper format to the Administrative Agent, such paper materials shall be deemed to be Borrower Materials for all purposes. Nothing in this Section 6.2(e) shall limit the obligations of the Administrative Agent and the Lenders under Section 10.16.
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) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a) (commencing with the delivery of the financial statements for the fiscal year ended December 31, 2007, 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 Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower, and in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 7.11, a statement of reconciliation conforming such financial statements to GAAP;
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) 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;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower Loan Party or any Subsidiary thereof;
(except 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 (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding 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 reasonably be expected to have a Material Adverse Effect;
(i) within 30 days after the end of each fiscal year of the Borrower, (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, trade names and copyrights awarded to the extent prohibited by confidentiality obligations required Borrower 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 the SEC Borrower or any comparable agencySubsidiary thereof during such fiscal year and the status of each such application; and (C) 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; provided that if no changes to the foregoing described schedules are required for such schedules to be accurate and complete in all material respects, then no such report will be required pursuant to this Section 6.02(i);
(fj) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;and
(gk) promptly after the occurrence and in any event within ten Business Days thereof, notice of the failure termination of any Carrier Contract, together with a certificate of a Responsible Officer of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, Borrower stating which party terminated such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)Carrier Contract, the REITreason for such termination and that such termination will not materially impair the Borrower’s consolidated financial covenant projections for the current and the succeeding three fiscal quartersbusiness, as prepared by the REIT’s chief financial officer (condition or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireprospects. Documents required to be delivered pursuant to Section 6.01(a) or ), (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers 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 Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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, in form and detail satisfactory to the Administrative Agent:
(a) Intentionally Omittedconcurrently 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 6.01(a) and (b), a duly completed Compliance ---------------- --- Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results Borrower has notified the Admnistrative Agent of any Borrower (except to the extent prohibited by confidentiality obligations required intention by the SEC 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 comparable agency);successor form; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;.
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents -------- to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Administrative Agent Notwithstanding anything ---- contained herein, in every instance the Borrower shall have no obligation be required to request the delivery of or to maintain provide paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance Compliance Certificates required by the 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”------- 6.02
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) Intentionally Omittedconcurrently 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 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(a7.01(a) and (b) (other than the financial statements for the fiscal quarter of the Borrower ended September 30, 2005), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after any request by the Administrative Agent, documents and other information supporting the calculation of any defined term used in the computation in any Compliance Certificate of the financial covenants set forth in Section 8.12;
(e) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ef) promptly, as soon as available and in any event within five (5) Business Days no later than 60 days after receipt thereof by any the beginning of each fiscal year of the Borrower, copies a consolidated business plan for the Borrower and its Non-Xxxxxxx Subsidiaries prepared by management of each material notice or other material correspondence received from the SEC Borrower, substantially similar in form and detail to the business plans prepared prior to the Closing Date and furnished under the Existing Credit Agreement, but taking into account the US Pipe Contribution, to the Administrative Agent and including balance sheets, and related statements of operations, retained earnings and cash flow (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by to include separate forecasts for Consolidated Capital Expenditures and Consolidated EBITDA), on a quarterly basis for such agency regarding financial or other operational results fiscal year, and a reasonably detailed explanation of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);underlying assumptions with respect thereto; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Non-Xxxxxxx Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a7.01(a) or (b) or Section 6.02(d7.02(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree 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, (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” ”, the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” ”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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
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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersDomestic Borrower (which delivery may, unless 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 all purposes);
(cb) 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 REIT Domestic Borrower by independent accountants in connection with the accounts or books of the REIT Domestic Borrower 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 REITDomestic Borrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Domestic Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the 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;
(e) promptly, and in any event within five (5) fifteen Business Days after receipt thereof by any BorrowerLoan 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. non‑U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(f) promptly, such additional information regarding any Foreign Pension Plans, as the Administrative Agent or any Lender may from time to time reasonably request;
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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;
(h) promptly after the assertion or occurrence thereof, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide notice of any information (i) in respect action or proceeding against or of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited any noncompliance by law or any arms-length agreement with unaffiliated third parties binding on any Borrower Loan Party or any of its Subsidiaries with any Environmental Law or (ii) is subject Environmental Permit that could reasonably be expected to attorney-client privilege or constitutes attorney work producthave a Material Adverse Effect;
(gi) promptly as soon as available, but in any event within 30 days after the occurrence establishment thereof, notice a report supplementing Schedule 5.12(d) setting forth each new Pension Plan, Foreign Pension Plan or Multiemployer Plan for which any Borrower, any Subsidiary or any ERISA Affiliate could have liability as may be necessary for such Schedule to be accurate and complete, each such report to be signed by a Responsible Officer of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if Domestic Borrower and to the extent required by applicable Law, such notice to be in a form and detail reasonably satisfactory to the Administrative Agent;
(j) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act;
(k) not later than five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all material notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any Qualified Securitization Transaction, any Permitted Receivables Facility or any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding any Qualified Securitization Transaction, any Permitted Receivables Facility and such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
(l) [reserved]; and
(hm) concurrently with to the delivery of extent any Loan Party qualifies as a “legal entity customer” under the financial statements referred 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 Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and relation to such Loan Party that would result in a format and with change to the list of beneficial owners identified in such detail as Administrative Agent may reasonably requirecertification. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Domestic Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Domestic Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted on the Borrowers’ 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 third‑party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (iA) the Borrowers Domestic Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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, Lender and (iiB) except with respect to current reports on Form 8-K, the Borrowers Domestic Borrower shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will any Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak Syndtrak, ClearPar or another a substantially similar electronic transmission 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 Borrowers or their securities) (each, a “Public Lender”)) may have personnel who do not wish to receive material non‑public information with respect to any of the Borrowers 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 Borrowers Each Borrower hereby agree agrees that so long as such Borrower is the issuer of any outstanding debt or Equity Interests 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 Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers such Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the Joint Lead Arrangers, the L/C Issuers 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 or proprietary) with respect to the Borrowers such Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, provided that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers any Affiliate thereof and any Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Diodes Inc /Del/)
Certificates; Other Information. Deliver to the Administrative AgentAgent for prompt further distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently Concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of Holdings and the BorrowersBorrower (which shall include a reasonably detailed calculation of the Fixed Charge Coverage Ratio);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) promptly after the same are publicly available, copies of each annual reportall annual, proxy regular, periodic and special reports and registration statements which Holdings, (or financial statement any direct or other report indirect parent of Holdings, including Parent) or communication sent to the stockholders any of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file its Restricted Subsidiaries files with the SEC under Section 13 or 15(dwith 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) of the Securities and Exchange Act, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto; provided that notwithstanding the foregoing, the obligations in this Section 6.02(b) may be satisfied so long as such information is publicly available on the SEC’s XXXXX website;
(c) promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary course of business) or material statements or material reports furnished to any holder of debt securities of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of any Senior Notes Documents or any Junior Financing Documentation and, in each case, any Permitted Refinancing thereof, and any other Indebtedness in a principal amount in excess of the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;
(d) together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates only, a report setting forth the legal name and the 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) [reserved] and (iii) a list of each Subsidiary of Holdings that identifies each Subsidiary as a Restricted Subsidiary, 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 since the later of the Closing Date or the date of the last such list;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);[reserved]; and
(f) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers Loan Parties or any Subsidiaryof their respective Restricted Subsidiaries, or compliance with the terms of the Loan Documents, Documents as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect . Each of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current Holdings and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Holdings, the Borrowers Borrower, their respective Affiliates or any of their respective securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree that (w) agrees to make all such Borrower Materials (other than SEC Reports) that are the Borrower intends to be made available to Public Lenders shall be clearly and conspicuously marked designated as “PUBLIC.” which, at a minimum, shall mean that the word By designating Borrower Materials as “PUBLIC” shall appear prominently on ”, the first page thereof; Borrower (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers 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 information or not material information (although though it may be sensitive and proprietary) with respect to Holdings, the Borrowers Borrower, their respective Affiliates or any of their respective securities for purposes of foreign, United States Federal federal and state securities laws, (y) authorizes the Administrative Agent and/or the Collateral Agent to treat such Borrower Materials as publicly available and not containing any material non-public information with respect to Holdings, the Borrower, their respective Affiliates or any of their respective securities for purposes of foreign, United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) authorizes the Administrative Agent and and/or the Joint Lead Arrangers shall be entitled Collateral Agent to treat any Borrower Materials (other than SEC Reports) 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 not be under any obligation to xxxx any Borrower Materials “PUBLIC.”” The Borrower agrees that (i) any Loan Documents and notifications of changes in terms of the Loan Documents, (ii) any financial statements delivered pursuant to Section 6.01 and (iii) any Compliance Certificates delivered pursuant to Section 6.02(a) will be deemed to be “public-side” Borrower Materials 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 the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
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) Intentionally Omittednot later than 90 days after the end of each fiscal year, a certificate of the Registered Public Accounting Firm stating that in making the examination necessary of the financial statements delivered pursuant to Section 6.01(a) no knowledge was obtained of any Default under the financial covenants set forth in Sections 7.16 and 7.17 herein, except as specified in such certificate;
(b) concurrently not later than 90 days after the end of such fiscal year with the delivery of respect to the financial statements referred to in Sections Section 6.01(a) and (bnot later than 45 days after the end of such fiscal quarter with respect to the financial statements referred to in Section 6.01(b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email or by delivery to the Administrative Agent for posting on SyndTrak or another similar electronic system and shall be deemed to be an original authentic counterpart thereof for all purposes);
(c) promptly after any request by the Administrative Agent or any Lendersame are filed, copies of any detailed audit reportsall financial statements and regular, management letters periodical or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the REIT by independent accountants in connection with the accounts or books of special reports which the REIT or any Subsidiarythe Borrower may make to, or any audit of any of them;
(d) promptly after the same are availablefile with, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);successor or similar Governmental Authority; and
(fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Borrower or any SubsidiarySubsidiary or other information, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) 6.01 or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post Borrower or the REIT posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s or 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), including the SEC’s XXXXX website; provided that: (i) that the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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
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) Intentionally Omittedintentionally omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrowerseach Borrower (which delivery may, unless 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);
(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 REIT each Borrower by independent accountants in connection with the accounts or books of the REIT Borrowers or any Subsidiary, or any audit of any of them;
(d) promptly promptly, but in any event within five (5) days 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 REITHoldings, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Holdings may file or be required to file with the SEC Securities and Exchange Commission under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant heretohereto (provided that the delivery requirements under this clause (d) shall be deemed satisfied at the time on which such annual report, proxy or financial statement or other report or communication is publicly available online and the Borrowers have provided written notice to the Agent that such annual report, proxy or financial statement or other report or communication is publicly available online);
(e) promptly after the 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 five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(fg) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information including, without limitation periodic receivables aging and inventory reports to be in form and detail reasonably satisfactory to Administrative delivered promptly upon request by Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide provides a link thereto on the Borrowers’ a Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites and provide to Agent by electronic mail at the direction electronic versions (i.e., soft copies) of the Borrowers)such documents. Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or 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”). The Borrowers hereby agree that so long as any 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers any Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform that is designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 an obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower, certifying among other things, as to (i) the Net Investments in each Unrestricted Subsidiary and (ii) the compliance by the Borrower with the financial covenants described in Section 7.13;
(cb) promptly after any request by the Administrative Agent or any Lendereither 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 REIT Parent and the Borrower by independent accountants in connection with the accounts or books of the REIT Parent, 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 REITParent, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent or the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. Notwithstanding the foregoing, in the event that the Parent or the Borrower timely files such filings in accordance with the requirements of the SEC and such filings are made publicly available through XXXXX, the Parent and 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;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agencySubsidiary thereof. Notwithstanding the foregoing, in the event that such notice or other correspondence is made publicly available through XXXXX, the Parent and the Borrower shall have no delivery requirement under this Section 6.02(e);
(f) promptly upon their becoming available, the Borrower shall furnish (i) copies of any periodic or special reports filed by any Loan Party with the FCC or any other federal, state or local Governmental Authority if such reports indicate any material change in the ownership of such Loan Party, or any materially adverse change in the business, operations, affairs or condition of any Loan Party, and (ii) copies of any material notices and other material communications from the FCC or any other federal, state or local Governmental Authority which specifically relate to any Loan Party, any Station or any material License, and the substance of which relates to a matter that could reasonably be expected to have a Material Adverse Effect;
(g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Parent, 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery promptly after any Responsible Officer becomes aware of the financial statements referred occurrence of a Restricted Period Trigger Date, a certificate signed by a Responsible Officer of the Borrower, certifying as to the calculation of the Consolidated Leverage Ratio as of such Restricted Period Trigger Date. Unless made publicly available as set forth in Sections 6.01(a) and (b)Section 6.01, the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) 6.02 (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)Internet; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers with any such request by a Lender for deliveryBorrower, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrowers Borrower and each Lender the Parent hereby acknowledge that (a) the Administrative Agent Agents and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf at the direction of the Borrowers Borrower or the Parent hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Parent, the Borrower or 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”). The Borrowers Borrower hereby agree agrees that so long as the Borrower or the Parent 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 and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative AgentAgents, the Joint Lead Arrangers, the L/C Issuers 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 Borrowers Borrower, the Parent or any of their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent Agents and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding anything in this paragraph, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC”.
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:
(a) Intentionally Omittedconcurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants to the effect that they have read a copy of this Agreement, and that, in making the examination 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) in form and detail reasonably satisfactory to the Administrative Agent, concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b)) commencing as of the first fiscal quarter of the Borrower after the Effective Date, a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, chief accounting officer, treasurer or controller of the BorrowersBorrower, including a list that identifies (i) each Material Domestic Subsidiary formed or acquired during the fiscal quarter then ended, including pursuant to a merger or Investment permitted by the provisions of this Agreement, (ii) each Domestic Subsidiary designated as a Material Subsidiary pursuant to Section 6.15(a)(i) during the fiscal quarter then ended and (iii) each Material Domestic Subsidiary that was Disposed of during the fiscal quarter then 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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report10-K, proxy or financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K statement which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) to the extent permitted by applicable law, promptly, and in any event within five (5) Business Days after receipt thereof by the Borrower or any BorrowerSubsidiary, 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 or other inquiry by the enforcement division of such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Subsidiary; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents Information required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are information is 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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) upon written request by the Borrowers Administrative Agent or any Lender, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any such Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or “TIF”pdf copies of the Compliance Certificates required by Section 6.02(b) transmissionto the Administrative Agent. The Except for such Compliance Certificates, 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or CoBank, as the Joint Lead Arrangers Arranger, will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their 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”). PUBLIC.” The Borrowers Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reportsif any) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Agent and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and CoBank, as the Joint Lead Arrangers Arranger, shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: Fourth Amendment Agreement and Release of Guaranty (United States Cellular Corp)
Certificates; Other Information. Deliver to the Paying Agent (who will make available to the Lenders), in form and detail satisfactory to the Co-Administrative AgentAgents:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a7.01(a) and (b7.01(b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersTimken;
(cb) 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 REIT by independent accountants in connection with the accounts or books of the REIT 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 REIT, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT may file or be required to file Timken have filed with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to or with any Governmental Authority that may be delivered to the Administrative Agent pursuant hereto;substituted therefor; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fc) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative any Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect . In lieu of which disclosure furnishing to the Administrative Paying Agent paper or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice electronic copies of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (7.02(b), to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so deliveredSEC or posted on Timken’s website, the documents shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which Timken posts 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 its website or whether sponsored by the Administrative Agent), including on the SEC’s XXXXX website; provided that: (i) system. Notwithstanding the Borrowers foregoing, Timken shall deliver paper or electronic copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers that requests Timken to deliver such paper or electronic copies. Notwithstanding anything contained herein, in every instance Timken shall be required to provide electronic copies until a written request of the Compliance Certificates required by Section 7.02(a) to cease delivering paper the Paying Agent (who will make such copies is given by available to the Administrative Agent or Lenders). Except for such Lender, and (ii) except with respect to current reports on Form 8-KCompliance Certificates, the Borrowers shall notify the Co-Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. The Administrative Agent Agents 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 Borrowers Timken 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 Borrowers and each Lender Timken hereby acknowledge acknowledges that (a) the Administrative Agent Agents and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Timken hereunder (collectively, the “Borrower Materials”) by posting the Borrower Timken Materials on IntraLinks, SyndTrak 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 Timken or its Affiliates, or the Borrowers or their 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”). The Borrowers Timken hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Timken shall be deemed to have authorized the Administrative AgentAgents, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available information or not containing any material non-public information (although it the parties acknowledge that such information may still be sensitive and and/or proprietary) with respect to the Borrowers Timken or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public InvestorSide Information;” and (z) the Administrative Agent Agents and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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.” For purposes of clarification, (i) any materials not marked “PUBLIC” shall be deemed to be material non-public information and (ii) notwithstanding the foregoing, Timken shall be under no obligation to xxxx any particular Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Timken Co)
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) Intentionally Omittedconcurrently 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 Section 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(c) on the 25th of each month a duly completed Asset Coverage Ratio Compliance Certificate signed by a Responsible Officer of Borrower;
(d) concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b), a Backlog Report of Federal Contracts certified by a Responsible Officer of the Borrower to be updated on an interim basis in the event of cumulative additions or deletions in excess of $1,000,000 with such interim reports to be delivered within 15 days of the event necessitating the interim report;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower or any Subsidiary, or any audit of any of them;
(df) 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC Securities and Exchange Commission under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;and
(g) promptly Promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or Borrower has notified Agent of any existing Subsidiary intention by Borrower to treat the Loans and/or Letters of Credit and related transactions as being a "reportable transaction" (within the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery meaning of the financial statements referred to in Sections 6.01(a) and (bTreasury Regulation Section 1.6011-4), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies duly completed copy of such documents to the Administrative Agent IRS Form 8886 or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investorsuccessor form.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent for further distribution to each Lender:
(a) Intentionally Omittedno later than five days after the delivery of (i) the financial statements referred to in Section 6.01(a), or (ii) an Annual Report on Form 10-K (delivered pursuant to the last paragraph of Section 6.01) for any Fiscal Quarter for which the financial covenant set forth in Section 7.11 is required to be tested, but only to the extent permitted by accounting industry policies generally followed by independent certified public accountants, a certificate or report of the Borrower’s independent certified public accountants stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default arising from a breach of Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(b) concurrently with no later than five days after the delivery of (i) the financial statements referred to in Sections 6.01(a) and (b), or (ii) an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q (in either case, delivered pursuant to the final paragraph of Section 6.01), beginning with the Fiscal Quarter ending March 30, 2014, a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower (which delivery may be by electronic communication including fax or electronic mail and shall be deemed to be an original authentic counterpart thereof for 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual reportall annual, proxy or financial statement or other report or communication sent to the stockholders of the REITregular, periodic and copies of all quarterly special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ed) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each material notice any requests or notices received by any Loan Party (other than in the ordinary course of business) and copies of any statement or report furnished to any holder of debt securities of the Borrower or of any of its Restricted Subsidiaries pursuant to the terms of any such securities 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;
(e) promptly following their submission with the FCC, copies of any and all Ownership Reports on FCC Form 323 and such other non-ordinary course reports, applications, or other material correspondence received documents as may be filed 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 Borrower (except time to the extent prohibited by confidentiality obligations required time by the SEC Borrower or any comparable agency);of its Restricted Subsidiaries, solely if such filings are publicly available if (i) such filings indicate that a material adverse effect in the business, operations or financial condition of the Borrower and its Subsidiaries taken as a whole has occurred or is reasonably likely to occur or (ii) copies thereof are requested by any Lender or the Administrative Agent; and
(f) promptly, such additional financial or other information regarding the business, financial or corporate affairs of the Borrowers Borrower or any Subsidiaryof its Restricted Subsidiaries thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender the Required Lenders through the Administrative Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) or (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or and (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an 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 (including any website maintained by the SEC) or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: that (i) upon written request by the Borrowers Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain or deliver to Lenders paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower with any such request by a Lender for delivery, and 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or their securities) (each, a “Public Lender”)) may have personnel who wish only to receive Public Side Information, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information containing only Public Side Information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;Side Information” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information” (it being understood the Borrower and its Restricted Subsidiaries shall not be under any obligation to xxxx any particular Borrower Materials “PUBLIC”). Notwithstanding anything herein to the contrary, (x) the list of Disqualified Lenders and (y) unless the Borrower otherwise notifies the Administrative Agent, financial statements delivered pursuant to Sections 6.01(a) and (b) and Compliance Certificates delivered pursuant to Section 6.02(b), shall be deemed to be suitable for posting on a portion of the Platform designated “Public Side Information”. Unless expressly identified as Public Side Information, the Administrative Agent and the Arrangers agree not to make any such Borrower Materials available to Public Lenders.”
Appears in 1 contract
Samples: Credit Agreement (Tribune Media Co)
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) Intentionally Omitted[reserved];
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2007), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT may file or be required to file Borrower files with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a governmental or commercial, third-party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents on a case-by-case basis to the Administrative Agent or any Lender upon its written request to requesting the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, same and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and, if requested, provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Borrower or their its securities) (each, a “Public Lender”). The Borrowers Borrower hereby agree 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Bright Horizons Family Solutions 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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), ) a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersOfficer;
(cb) 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 REIT Borrower by independent accountants in connection with an audit of the accounts or books of the REIT or any SubsidiaryBorrower;
(c) concurrently with the delivery of the financial statements referred to in Section 6.01(a), or any audit 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 themsuch event;
(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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by the Borrower or any BorrowerSubsidiary 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 or other inquiry by such agency regarding financial or other operational results of any the Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 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 Borrowers 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak Syntrack 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 have personnel that do not wish to receive material non-public information with respect to the Borrowers Borrower or their securities) (eachits Affiliates, a “Public Lender”)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’ activities. The Borrowers Borrower hereby agree 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; , (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arrangers and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); ) (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Hcp, Inc.)
Certificates; Other Information. Deliver to the Administrative Agent:
: (a) Intentionally Omitted;
[reserved]; (b) concurrently with no later than five (5) days after the delivery of (i) the financial statements referred to in Sections 6.01(a) and (b) or (ii) an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q (in either case, delivered pursuant to the last paragraph of Section 6.01), a duly completed Compliance Certificate signed by a Responsible Officer of Holdings or the BorrowersBorrower (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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual reportall annual, proxy regular, periodic and special reports and registration statements which Holdings or financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT Borrower may file or be required to file file, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
; (ed) promptly, and in any event within five (5) Business Days promptly after receipt thereof by any Borrowerthe furnishing thereof, copies of each material notice any notices of default delivered by or other material correspondence received from the SEC (or comparable agency in by 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 Borrower (except Loan Party pursuant to the extent prohibited by confidentiality obligations required by terms of the SEC Existing First Lien Credit Agreement or any comparable agency);
Junior Financing 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; and (fe) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Borrowers any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, Restricted Subsidiary thereof as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that that, notwithstanding anything to the Borrowers contrary herein, neither Holdings nor any Subsidiary shall not be required to provide any information (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) any Lender is then prohibited by law Law or any arms-length binding agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (iiiii) that is subject to attorney-attorney client or similar privilege or constitutes attorney work product;.
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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 request by the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers Borrower shall deliver paper copies of such documents to the Administrative Agent or any for further distribution to each Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Administrative Agent of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered described in this paragraph and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents to the extent requested by the Administrative Agent. The Administrative Agent shall have no obligation to request the delivery of or to maintain or deliver to Lenders paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower with any such request by a Lender for delivery, and 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 Borrowers and each Lender Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders Lenders, the Swingline Lender and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks/IntraAgency, SyndTrak LendAmend, 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 (within the meaning of foreign and United States federal and state securities laws) with respect to Holdings or its Affiliates, or the Borrowers or their 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”). The Borrowers Borrower hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLICPUBLIC SIDE” which, at a minimum, shall mean means that the word “PUBLIC SIDE” or “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC SIDE” or “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Swingline Lender, the L/C Issuers 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 Borrowers Holdings or its Affiliates, or their respective securities for purposes of foreign and United States Federal federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0710.08); (y) all SEC Reports and all Borrower Materials marked “PUBLIC SIDE” or “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;Side Information” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC SIDE” or “PUBLIC” as being shall be deemed to contain material non-public information (within the meaning of foreign and United States federal and state securities laws) and shall not be suitable only for posting on a portion of the Platform not designated “Public InvestorSide Information.” Notwithstanding anything herein to the contrary, financial statements delivered pursuant to Sections 6.01(a) and 6.01(b) and Compliance Certificates delivered pursuant to Section 6.02(b) shall be deemed to be suitable for posting on a portion of the Platform designated “Public Side Information.”
Appears in 1 contract
Samples: Credit Agreement (V2X, Inc.)
Certificates; Other Information. Deliver to the Administrative AgentLender, in form and detail reasonably satisfactory to the Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersBorrower;
(cb) 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 REIT Borrower by independent accountants in connection with the accounts or books of the REIT Borrower 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 REITBorrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent Lender pursuant hereto;; and
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(fd) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); 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), including the SEC’s XXXXX website9.02; provided that: (i) if the Borrowers Lender so requests, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Borrower shall notify the Administrative Agent (which may be by telecopier facsimile or electronic mail) the Lender of the posting of any such documents (provided that such notices may documents. Notwithstanding anything contained herein, in every instance the Borrower shall be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. The Administrative Agent shall have no obligation to request the delivery of or to maintain provide paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance Compliance Certificates required by the 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 Borrowers and each Lender hereby acknowledge that (aSection 6.02(a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (Microsemi 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) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ending September 30, 2011), a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersOfficer;
(cb) 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 REIT Guarantor by independent accountants in connection with an audit of the accounts or books of the REIT or any SubsidiaryGuarantor;
(c) concurrently with the delivery of the financial statements referred to in Section 6.01(a), or any audit a certificate of the Guarantor’s 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 themsuch event;
(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 REITGuarantor, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K which registration statements that the REIT Guarantor may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by the Guarantor or any BorrowerSubsidiary 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Guarantor or any comparable agency);Subsidiary thereof; and
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Guarantor posts such documents, or provide provides a link thereto thereto, on the Borrowers’ Guarantor’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Parent Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver that requests such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Parent Borrower shall notify the Administrative Agent (by telecopier or electronic mail) ), which shall notify each Lender, of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and, upon request, provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Parent 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 Borrowers and each Lender Credit Parties hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Credit Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 have personnel that do not wish to receive material non-public information with respect to the Borrowers Credit Parties or their securities) (eachAffiliates, a “Public Lender”)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’ activities. The Borrowers Credit Parties hereby agree that so long as any Credit Party 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; , (x) by marking Borrower Materials “PUBLIC,” the Borrowers Credit Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available not containing any material non-public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Credit Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.07); ) (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 1 contract
Certificates; Other Information. Deliver to the Administrative AgentAgent for distribution to each Lender:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersBorrower 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);
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(db) 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 REITParent or the Loan Party, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent or the Loan Parties may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(ec) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of the Parent or 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;
(d) promptly, and in any event within five (5) Business Days after receipt thereof by the Parent or any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC or the Australian Securities and Investments Commission (or comparable agency in any other 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Parent or any comparable agency);Loan Party or any Subsidiary thereof; and
(fe) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Parent or 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Parent or such Loan Party posts such documents, or provide provides a link thereto on the Borrowers’ Parent’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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 third‑party website or whether sponsored by the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Borrower Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents and (provided that such notices may be provided by commercial third-party websites by electronic mail at ii) the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered Borrower Agent shall provide to the Administrative Agent or any Lender by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents upon its request to the Borrower Agent to deliver such electronic versions. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper electronic copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower Agent with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its electronic copies of such documents. The Borrowers Parent and each Lender the Loan Parties hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers Parent and the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak Syndtrak, ClearPar, or another a substantially similar electronic transmission 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 Borrowers or their securities) (each, a “Public Lender”)) may have personnel who do not wish to receive material non‑public information with respect to the Parent and each Loan Party 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 Borrowers Parent and the Loan Parties hereby agree that so long as the Parent or any Loan Party 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 (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Parent and the Loan Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Arranger and the Lenders to treat such Borrower Materials as either publicly available not containing any material non‑public information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Parent and each Loan Party or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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: 364 Day Term Loan and Guaranty Agreement (James Hardie Industries PLC)
Certificates; Other Information. Deliver to the Administrative Agent:Agent (which will promptly furnish such information to each Lender):
(a) Intentionally Omitted;
within five (b5) concurrently with days of the delivery of the financial statements referred to in Sections 6.01(a) and (b6.01(b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, chief accounting officer, vice president of treasury, treasurer or controller of the BorrowersAdministrative Borrower (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), and in the event of any change in accounting principles used in the preparation of such financial statements, the Administrative Borrower shall also provide, if necessary for the determination of compliance with the Financial Covenants, a statement of reconciliation conforming such financial statements to GAAP;
(b) [reserved];
(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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the REITAdministrative Borrower, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Administrative Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the receipt thereof by any Responsible Officer of the Administrative Borrower, details with respect to any material (i) “warning letter”, “untitled letter” or similar notification, or (ii) notification of a mandated or requested recall affecting the Specified Products, in each case, from the FDA (or analogous foreign, state or local Governmental Authority);
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Restricted 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Restricted Subsidiary thereof;
(f) as soon as available, but in any event within 45 days after the end of each fiscal year of the Administrative Borrower, and at such other times as the Borrowers may reasonably deem necessary, a report supplementing Schedule 5.14 containing a description of all changes in the information included in such Schedule as may be necessary for such Schedule to be accurate and complete, each such report to be signed by a Responsible Officer of the Administrative Borrower and to be in a form reasonably satisfactory to the Administrative Agent; and
(g) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers any Loan Party or any SubsidiaryRestricted Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent (for itself or on behalf of any Lender Lender) may from time to time reasonably request, all such additional information to be in form including (x) copies of manufacturing safety and detail reasonably satisfactory to Administrative Agent; provided that efficacy data filed with the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders FDA (or their designated representative) is then prohibited by law analogous foreign, state or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(alocal Governmental Authority) and (b)y) information and documentation necessary for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act, the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (Beneficial Ownership Regulation or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireapplicable anti-money laundering laws. Documents required to be delivered pursuant to Section 6.01(a) or (b6.01(b) or Section 6.02(d6.02(c) (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 Administrative Borrower posts such documents, or provide provides a link thereto on the Borrowers’ Administrative Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (ii) on which such documents are posted delivered to the Administrative Agent for posting on the Borrowers’ Administrative 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), including the SEC’s XXXXX website; provided that: (i) the Borrowers Administrative Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Administrative Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Administrative Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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 Borrowers Administrative 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers or 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”). The Borrowers Administrative Borrower hereby agree agrees that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to the Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Administrative Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Agent 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 Borrowers Administrative Borrower or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 Administrative Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:
Agent for distribution to each Lender: (a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the Borrowers;
Borrower Agent (c) promptly after any request by which delivery may, unless 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 REIT by independent accountants in connection with the accounts or books of the REIT or any SubsidiaryAgent, or any audit of any of them;
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); (db) 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 REITParent or the Loan Party, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Parent or the Loan Parties may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;; 89 Xxxxx Xxxxxx Amended and Restated Credit and Guaranty Agreement NYDOCS03/1067767.15
(ec) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of the Parent or 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; (d) promptly, and in any event within five (5) Business Days after receipt thereof by the Parent or any BorrowerLoan Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC or the Australian Securities and Investments Commission (or comparable agency in any other 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 Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Parent or any comparable agency);
Loan Party or any Subsidiary thereof; and (fe) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Parent or 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 Parent or such Loan Party posts such documents, or provide provides a link thereto on the Borrowers’ Parent’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)10.02; or (ii) on which such documents are posted on the Borrowers’ 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), including the SEC’s XXXXX website; provided that: :
(i) the Borrowers shall deliver paper copies of such documents to the Administrative Borrower Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent and each Lender (by telecopier facsimile or electronic mail) of the posting of any such documents and (provided that such notices may be provided by commercial third-party websites by electronic mail at ii) the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered Borrower Agent shall provide to the Administrative Agent or any Lender by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof such documents upon its request to the Borrower Agent to deliver such electronic versions. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper electronic copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers Borrower Agent with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its electronic copies of such documents. The Borrowers Parent and each Lender the Loan Parties hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers Parent and the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Parent and each Loan Party 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) (each, a “Public Lender”). The Borrowers Parent and the Loan Parties hereby agree that (w) all such Borrower Materials (other than SEC Reports) so long as the Parent or any Loan Party is the issuer of any outstanding debt or equity securities that are to be made available to Public Lenders shall be clearly registered or issued 90 Xxxxx Xxxxxx Amended and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Restated Credit and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”Guaranty Agreement NYDOCS03/1067767.15
Appears in 1 contract
Samples: Credit and Guaranty Agreement (James Hardie Industries PLC)
Certificates; Other Information. Deliver to the Administrative AgentAgent on behalf of each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) Intentionally Omittedconcurrently 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 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the BorrowersHoldings and (ii) a copy of management’s discussion and analysis with respect to such financial statements;
(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 REIT any Loan Party by independent accountants in connection with the accounts or books of the REIT any Loan Party or any Subsidiaryof its Subsidiaries, or any audit of any of them, except to the extent such accountants shall restrict the ability of Holdings to deliver such documents to the Administrative Agent or such Lender, as the case may be;
(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 REIT, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Holdings may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) as soon as available, but in any event within 30 days after the end of each fiscal year of Holdings, a report summarizing the material insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Subsidiary thereof;
(fg) as soon as available, but in any event within 15 days (or if the 15th day of such month is not a Business Day, the next succeeding Businesses Day) after the end of each (i) month (if there are Revolving Loans outstanding) or (ii) fiscal quarter (if there are no Revolving Loans outstanding), a Borrowing Base Certificate, as at the end of such month or fiscal quarter, duly certified by a Responsible Officer of Holdings;
(h) promptly, such additional information regarding the business, financial financial, legal or corporate affairs of the Borrowers 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, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information ;
(i) in respect the case of which disclosure a U.K. Loan Party, promptly notify the Administrative Agent of any change of name, change of office address or change its center of main interests; and
(j) in addition to the requirements of Section 10.18, in the case of any Loan Party, promptly after any request by the Administrative Agent or the Lenders (Lender, supply or their designated representative) is then prohibited by law procure the supply of such documentation in order for the Administrative Agent, such Lender or any arms-length agreement prospective lender to carry out and be satisfied with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or results of any existing Subsidiary of the REIT necessary “know your customer checks” or other checks in relation to maintain its status as a qualified REIT subsidiary under the Code, if and any person that it is required by directive or law in relation to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared transactions contemplated by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably requireAgreement. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(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 provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)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), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers 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) except with respect to current reports on Form 8-K, that the Borrowers shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” or “TIF”soft copies) transmissionof 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(b) to the Administrative Agent. Except for such Compliance Certificates, 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 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 Borrowers and each Lender hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers Holdings or their its securities) (each, a “Public Lender”). The Each of the Borrowers hereby agree agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers Issuer and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers Holdings or their its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07)laws; (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 Lessee shall furnish to the Administrative Brazos and Agent:
(a) Intentionally Omitted;
(b) concurrently with the delivery of the annual financial statements referred to in Sections 6.01(a) and (bSECTION 5.3(b), a duly completed the Compliance Certificate signed (as defined in the Guaranty) required to be provided by Guarantor pursuant to Section 7(b) of the Guaranty, and a certificate of a Responsible Officer stating that, to the best of the Borrowers;such Responsible Officer's knowledge, Lessee during such period has observed or performed all of its covenants and other agreements, and satisfied every condition contained in this Agreement to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Event of Default or Potential Default, except as specified in such certificate; and
(cb) from time to time, (i) promptly after any request by the Administrative Agent or any Lenderupon request, 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 REIT by independent accountants in connection with the accounts or books of the REIT or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report, proxy or quarterly financial statement or other report or communication sent to the stockholders of the REIT, and copies of all quarterly reports on Form 10-Q and current reports on Form 8-K which the REIT may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange Act, and not otherwise statements required to be delivered to the Administrative Agent pursuant hereto;
(eunder Section 8.1(b) promptly, and in any event within five (5) Business Days after receipt thereof by any Borrower, 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC or any comparable agency);
(f) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers or any Subsidiary, or compliance with the terms of the Loan Corporate Credit Documents, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement together with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents each certificate required to be delivered pursuant under Section 8.1 of the Corporate Credit Documents, and within one hundred (100) days after the end of Guarantor's fiscal year, copies of the annual financial statements required to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so deliveredunder Section 8.1(a) of the Corporate Credit Documents, shall together with each certificate required to be deemed to have been delivered on under Section 8.1 of the date (i) on which the Borrowers post such documentsCorporate Credit Documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent); or (ii) on which promptly upon request, such documents are posted on other information with respect to Guarantor or Lessee or Guarantor's or Lessee's operations, business, property, assets or financial condition as Brazos or Agent shall reasonably request, (iii) promptly after a Responsible Officer obtains knowledge of any Event of Default or Potential Default, a certificate of a Responsible Officer specifying the Borrowers’ behalf on an Internet nature and period of existence of such Event of Default or intranet websitePotential Default, and what action, if any, Lessee has taken, is taking, or proposes to which each Lender and take with respect thereto, (iv) promptly after a Responsible Officer obtains knowledge of any material adverse change in the Administrative Agent have access (whether financial condition or business of Guarantor or Lessee or of any litigation of the type described in SECTION 4.7, a commercial, third-party website certificate of a Responsible Officer describing such change or whether sponsored by litigation as the Administrative Agent), including the SEC’s XXXXX website; provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lendercase may be, and (iiv) except with respect to current reports on Form 8-K, the Borrowers shall notify the Administrative Agent (by telecopier or electronic mail) of the posting promptly after Lessee obtains knowledge of any such documents (provided that such notices and all Liens other than Permitted Exceptions on any Property or other matter which may be provided by commercial third-party websites by electronic mail at materially adversely affect the direction value or intended use of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered to the Administrative Agent by electronic image scan (e.g., “PDF” or “TIF”) transmission. 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 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 Borrowers and each Lender hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (eachProperty, a “Public Lender”). The Borrowers hereby agree that (w) all detailed statement describing each such Borrower Materials (Lien or other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07, they shall be subject to the terms of Section 10.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials (other than SEC Reports) that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investormatter.”
Appears in 1 contract
Certificates; Other Information. Deliver to the Administrative Agent:Agent (for further distribution to each Lender):
(a) Intentionally Omitted;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or controller of the BorrowersCompany;
(cb) 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 REIT any Borrower by independent accountants in connection with the accounts or books of the REIT Company 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 REITCompany, and copies of all quarterly annual, regular, periodic and special reports on Form 10-Q and current reports on Form 8-K registration statements which the REIT Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities and Exchange ActAct of 1934 or with any national securities exchange (or comparable agency in any applicable non-U.S. jurisdiction), and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Material 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;
(e) promptly, and in any event within five (5) Business Days after receipt thereof by any BorrowerLoan Party or any Material 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 or other inquiry by such agency regarding financial or other operational results of any Borrower (except to the extent prohibited by confidentiality obligations required by the SEC Loan Party or any comparable agency)Material Subsidiary thereof;
(f) not later than five Business Days after receipt thereof by any Loan Party or any Material Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any indenture, loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding such indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
(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 reasonably be expected to have a Material Adverse Effect; and
(h) promptly, such additional information regarding the business, financial or corporate affairs of the Borrowers Company or any Material Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, all such additional information to be in form and detail reasonably satisfactory to Administrative Agent; provided that the Borrowers shall not be required to provide any information (i) in respect of which disclosure to the Administrative Agent or the Lenders (or their designated representative) is then prohibited by law or any arms-length agreement with unaffiliated third parties binding on any Borrower or any of its Subsidiaries or (ii) is subject to attorney-client privilege or constitutes attorney work product;
(g) promptly after the occurrence thereof, notice of the failure of the REIT to maintain REIT Status or of any existing Subsidiary of the REIT to maintain its status as a qualified REIT subsidiary under the Code, if and to the extent required by applicable Law, such notice to be in form and detail reasonably satisfactory to Administrative Agent; and
(h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), the REIT’s consolidated financial covenant projections for the current and the succeeding three fiscal quarters, as prepared by the REIT’s chief financial officer (or other equivalent financial officer) and in a format and with such detail as Administrative Agent may reasonably require. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d6.02(c) (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 (ia) on which the Borrowers post Company posts such documents, or provide provides a link thereto on the Borrowers’ Company’s website on the Internet at the website address listed on Schedule 10.02 (as such address may be updated from time to time upon at least ten (10) Business Days prior written notice to the Administrative Agent)11.02; or (iib) on which such documents are posted on the Borrowers’ 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, including the SEC’s XXXXX website; provided that: (i) the Borrowers Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to that requests the Borrowers Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, Lender and (ii) except with respect to current reports on Form 8-K, the Borrowers Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents (provided that such notices may be provided by commercial third-party websites by electronic mail at the direction of the Borrowers). Documents required to be delivered pursuant to Section 6.02(b) may be delivered and provide to the Administrative Agent by electronic image scan mail electronic versions (e.g.i.e., “PDF” soft copies) of such documents to the extent not readily available on any such Intranet or “TIF”website. 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) transmissionto the Administrative Agent. The Except for such Compliance Certificates, 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 Borrowers Company 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 Borrowers and each Lender Each Borrower hereby acknowledge acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Lenders and the L/C Issuers Issuer materials and/or information provided by or on behalf of the Borrowers such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak 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 Borrowers 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) (each, a “. Each Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lender”). The Borrowers hereby agree Lenders and that (w) all such Borrower Materials (other than SEC Reports) that are to be made available to Public 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; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the L/C Issuers 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 Borrowers or their respective securities for purposes of United States Federal federal and state securities laws (provided, howeverthat, that to the extent such Borrower Materials constitute Information for purposes of Section 10.07Information, they shall be subject to the terms of treated as set forth in Section 10.0711.07); (y) all SEC Reports and all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public InvestorSide Information;” and (z) the Administrative Agent and the Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Materials (other than SEC Reports) 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 (GENTHERM Inc)
