Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Administrative Agent (for distribution to each Lender) copies of the following financial statements, reports, notices and information: (a) within 45 days (or such shorter period for the filing of the Borrower’s Form 10-Q as may be required by the SEC) after the end of each of the first three Fiscal Quarters of each Fiscal Year commencing with the Fiscal Quarter ending March 31, 2010, a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Quarter and consolidated statements of earnings, stockholders’ equity and cash flows of the Borrower and its Restricted Subsidiaries for such Fiscal Quarter and for the same period in the prior Fiscal Year and for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, certified by a Financial Officer of the Borrower as fairly presenting, in all material respects, the financial position, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the absence of notes), it being understood and agreed that the delivery of the Borrower’s Form 10-Q (as filed with the SEC), if certified as required in this Section 5.01(a), shall satisfy the requirements set forth in this clause to the extent such Form 10-Q includes the information specified in this clause, together with a certificate from a Financial Officer of the Borrower on behalf of the Borrower (a “Compliance Certificate”) containing a computation in reasonable detail of, and showing compliance with, each of the financial ratios and restrictions contained in the Financial Covenants and setting forth a calculation of the Total Net Leverage Ratio and to the effect that, in making the examination necessary for the signing of such certificate, such Financial Officer has not become aware of any Default or Event of Default that has occurred and is continuing, or, if such Financial Officer has become aware of such Default or Event of Default, describing such Default or Event of Default and the steps, if any, being taken to cure it; (b) within 90 days (or such shorter period as may be required for the filing of the Borrower’s Form 10-K by the SEC) after the end of each Fiscal Year of the Borrower, commencing with the Fiscal Year ending December 31, 2010, a copy of the annual audit report for such Fiscal Year for the Borrower, including therein a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings, stockholders’ equity and cash flows of the Borrower and its Restricted Subsidiaries for such Fiscal Year, in each case accompanied by an opinion (without any Impermissible Qualification) of Deloitte & Touche LLP or other independent public accountants of recognized national standing selected by the Borrower and reasonably acceptable to the Administrative Agent, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP (it being understood and agreed that the delivery of the Borrower’s Form 10-K (as filed with the SEC) shall satisfy such delivery requirement in this clause to the extent such Form 10-K includes the information and opinion specified in this clause), together with a Compliance Certificate and a calculation of Excess Cash Flow for such Fiscal Year, and a certificate of the accounting firm that delivered its opinion with respect to such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default under any of the Financial Covenants and, if in the opinion of such accounting firm such an Event of Default has occurred, identifying such Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); provided that, for any period, the Borrower shall not be required to deliver such certificate if the Borrower certifies to the Administrative Agent that its is unable to do so following the use of commercially reasonable efforts; (c) no later than February 28 of each Fiscal Year of the Borrower, commencing with the Fiscal Year beginning January 1, 2011, a detailed consolidated budget by Fiscal Quarter for such Fiscal Year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for each Fiscal Quarter during such Fiscal Year) and the next two succeeding Fiscal Years and, promptly when available, any significant revisions of such budgets; (d) promptly upon receipt thereof, copies of all final material reports submitted to the Borrower by independent public accountants (except to the extent that would violate any confidentiality provision not waiveable by the Borrower) in connection with each annual, interim or special audit of the books of the Borrower or any of its Restricted Subsidiaries made by such accountants, including any final management letters submitted by such accountants to management in connection with their annual audit; (e) as soon as possible and in any event within five Business Days after becoming aware of the occurrence of any Default or Event of Default, a statement of a Financial Officer of the Borrower on behalf of the Borrower setting forth details of such Default or Event of Default and the action (if any) which the Borrower and it Subsidiaries have taken or propose to take with respect thereto; (f) promptly and in any event within five Business Days after obtaining knowledge of (i) the occurrence of any adverse development with respect to any litigation, action or proceeding that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (ii) the commencement of any litigation, action or proceeding that could reasonably be expected to have a Material Adverse Effect or that purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, notice thereof and, upon the request of the Administrative Agent, copies of all material documentation relating thereto; (g) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its security holders (in their capacity as such) or any trustee, agent or other representative therefor, and all reports, registration statements (other than on Form S-8 or any successor form) or other materials (including affidavits with respect to reports) which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange; (h) promptly upon becoming aware of the taking of any specific actions by the Borrower or any other Person to terminate any Pension Plan (other than a termination pursuant to Section 4041(b) of ERISA which can be completed without the Borrower or any Restricted Subsidiary having to provide more than $10.0 million in addition to the normal contribution required for the plan year in which termination occurs to make such Pension Plan sufficient), or the occurrence of an ERISA Event which would result in a Lien on the assets of the Borrower or any Restricted Subsidiary or in the incurrence by the Borrower or any Restricted Subsidiary of any payment obligations, fine or penalty which could reasonably be expected to have a Material Adverse Effect, notice thereof and copies of all documentation relating thereto; (i) 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 or any Restricted Subsidiary or ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan and each Foreign Plan for which a report is prepared; (iii) all notices received by the Borrower or any Restricted Subsidiary or ERISA Affiliate from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Pension Plan, Multiemployer Plan (to the extent a Loan Party possesses such document, report or filing) or Foreign Plan as the Administrative Agent shall reasonably request; (j) promptly and in any event within ten Business Days after obtaining knowledge thereof, notice of any other development that has resulted in or could reasonably be expected to have a Material Adverse Effect; (k) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request; and (l) upon becoming aware of any newly arising environmental matters, facts or conditions affecting any property or facilities owned or operated by the Borrower or any of its Restricted Subsidiaries, or which relate to any Environmental Liabilities of the Borrower or any of its Restricted Subsidiaries, to the extent reflecting any matters which, in any such case, could reasonably be expected to result in a new Environmental Liability (or an increase in an existing Environmental Liability) in excess of $10.0 million, notify the Administrative Agent within five Business Days after becoming aware of such environmental matters and any Remedial Actions or other corrective actions of the Borrower or any of its Restricted Subsidiaries in respect thereof. Documents required to be delivered pursuant to Sections 5.01(a) and (b) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed in Section 9.01(a); (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are available via the XXXXX system of the SEC on the internet; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Credit Agreement (Solutia Inc)
Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Administrative each Lender and each Agent (for distribution to each Lender) copies of the following financial statements, reports, notices and information (except to the extent any such Lender shall have provided written notice to the Borrower and the Administrative Agent that it is not to receive any of the following statements, reports, notices and information:):
(a) within 45 days (Whether or such shorter period for not the filing Borrower is required to do so by the rules and regulations of the Borrower’s Form SEC, the Borrower will file with the SEC (unless the SEC will not accept such a filing) and, within 15 days of filing, or attempting to file, the same with the SEC, furnish to the Lenders (i) all quarterly and annual financial and other information with respect to the Borrower and its Subsidiaries that would be required to be contained in a filing with the SEC on Forms 10-Q as may and 10-K if the Borrower were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by the Borrower's certified independent accountants, and (ii) all current reports that would be required by to be filed with the SECSEC on Form 8-K if the Borrower were required to file such reports.
(b) The Borrower shall deliver to the Administrative Agent, within 90 days after the end of each fiscal year, an Officer's Certificate stating that a review of the first three Fiscal Quarters of each Fiscal Year commencing with the Fiscal Quarter ending March 31, 2010, a consolidated balance sheet activities of the Borrower and its Restricted Subsidiaries as during the preceding fiscal year has been made under the supervision of the end signing Officers with a view to determining whether the Borrower has kept, observed, performed and fulfilled its obligations under this Agreement, and further stating, as to each such Officer signing such certificate, that to the best of such Fiscal Quarter his or her knowledge the Borrower has kept, observed, performed and consolidated statements fulfilled each and every covenant contained in this Agreement and is not in default in the performance or observance of earnings, stockholders’ equity and cash flows any of the terms, provisions and conditions of this Agreement (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Borrower is taking or proposes to take with respect thereto) and its Restricted Subsidiaries for such Fiscal Quarter that to the best of his or her knowledge no event has occurred and for the same period remains in the prior Fiscal Year and for the period commencing at the end existence by reason of which payments on account of the previous Fiscal Year and ending with principal of or interest, if any, on the end of Term Loans is prohibited or if such Fiscal Quarterevent has occurred, certified by a Financial Officer description of the event and what action the Borrower is taking or proposes to take with respect thereto.
(c) So long as fairly presenting, in all material respectsnot contrary to the then current recommendations of the American Institute of Certified Public Accountants, the financial position, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the absence of notes), it being understood and agreed that the delivery financial statements delivered pursuant to CLAUSE (B) above shall be accompanied by a written statement of the Borrower’s Form 10-Q 's independent public accountants (as filed with the SEC), if certified as required in this Section 5.01(a), who shall satisfy the requirements set forth in this clause to the extent such Form 10-Q includes the information specified in this clause, together with be a certificate from a Financial Officer firm of the Borrower on behalf of the Borrower (a “Compliance Certificate”established national reputation) containing a computation in reasonable detail of, and showing compliance with, each of the financial ratios and restrictions contained in the Financial Covenants and setting forth a calculation of the Total Net Leverage Ratio and to the effect that, that in making the examination necessary for the signing certification of such certificatefinancial statements, such Financial Officer nothing has not become aware come to their attention that would lead them to believe that the Borrower has violated any provisions of any Default or Event of Default that has occurred and is continuing, ARTICLE VII hereof or, if any such Financial Officer violation has become aware occurred, specifying the nature and period of existence thereof, it being understood that such Default accountants shall not be liable directly or Event indirectly to any Person for any failure to obtain knowledge of Default, describing any such Default or Event of Default and the steps, if any, being taken to cure it;violation.
(bd) within 90 days (or such shorter period The Borrower shall, so long as may be required for the filing any of the Borrower’s Form 10-K by the SEC) after the end of each Fiscal Year of the BorrowerTerm Loans are outstanding, commencing with the Fiscal Year ending December 31, 2010, a copy of the annual audit report for such Fiscal Year for the Borrower, including therein a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings, stockholders’ equity and cash flows of the Borrower and its Restricted Subsidiaries for such Fiscal Year, in each case accompanied by an opinion (without any Impermissible Qualification) of Deloitte & Touche LLP or other independent public accountants of recognized national standing selected by the Borrower and reasonably acceptable deliver to the Administrative Agent, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP (it being understood and agreed that the delivery of the Borrower’s Form 10-K (as filed with the SEC) shall satisfy such delivery requirement in this clause to the extent such Form 10-K includes the information and opinion specified in this clause), together with a Compliance Certificate and a calculation of Excess Cash Flow for such Fiscal Year, and a certificate of the accounting firm that delivered its opinion with respect to such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of forthwith upon any Event of Default under any of the Financial Covenants and, if in the opinion of such accounting firm such an Event of Default has occurred, identifying such Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); provided that, for any period, the Borrower shall not be required to deliver such certificate if the Borrower certifies to the Administrative Agent that its is unable to do so following the use of commercially reasonable efforts;
(c) no later than February 28 of each Fiscal Year of the Borrower, commencing with the Fiscal Year beginning January 1, 2011, a detailed consolidated budget by Fiscal Quarter for such Fiscal Year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for each Fiscal Quarter during such Fiscal Year) and the next two succeeding Fiscal Years and, promptly when available, any significant revisions of such budgets;
(d) promptly upon receipt thereof, copies of all final material reports submitted to the Borrower by independent public accountants (except to the extent that would violate any confidentiality provision not waiveable by the Borrower) in connection with each annual, interim or special audit of the books of the Borrower or any of its Restricted Subsidiaries made by such accountants, including any final management letters submitted by such accountants to management in connection with their annual audit;
(e) as soon as possible and in any event within five Business Days after Officer becoming aware of the occurrence of any Default or Event of Default, a statement of a Financial Officer of the Borrower on behalf of the Borrower setting forth details of an Officer's Certificate specifying such Default or Event of Default and the what action (if any) which the Borrower and it Subsidiaries have taken is taking or propose proposes to take with respect thereto;.
(e) The Borrower shall so long as any of the Term Loans are outstanding, promptly notify the Administrative Agent and each Lender of the occurrence of any Change of Control and, within 30 days of any Change of Control, deliver to the Administrative Agent and each Lender a Change of Control Prepayment Notice.
(f) promptly and in any event within five Business Days after obtaining knowledge of (i) the occurrence of any adverse development with respect Any information required to any litigation, action or proceeding that, individually or in the aggregate, could reasonably be expected provided pursuant to have a Material Adverse Effect or (ii) the commencement of any litigation, action or proceeding that could reasonably be expected to have a Material Adverse Effect or that purports to affect the legality, validity or enforceability other provisions of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, notice thereof and, upon the request of the Administrative Agent, copies of all material documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its security holders (in their capacity as such) or any trustee, agent or other representative thereforAgreement, and all reports, registration statements (other than on Form S-8 or any successor form) or other materials (including affidavits with respect to reports) which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
(h) promptly upon becoming aware of the taking of any specific actions by the Borrower or any other Person to terminate any Pension Plan (other than a termination pursuant to Section 4041(b) of ERISA which can be completed without the Borrower or any Restricted Subsidiary having to provide more than $10.0 million in addition to the normal contribution required for the plan year in which termination occurs to make such Pension Plan sufficient), or the occurrence of an ERISA Event which would result in a Lien on the assets of the Borrower or any Restricted Subsidiary or in the incurrence by the Borrower or any Restricted Subsidiary of any payment obligations, fine or penalty which could reasonably be expected to have a Material Adverse Effect, notice thereof and copies of all documentation relating thereto;
(i) 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 or any Restricted Subsidiary or ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan and each Foreign Plan for which a report is prepared; (iii) all notices received by the Borrower or any Restricted Subsidiary or ERISA Affiliate from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Pension Plan, Multiemployer Plan (to the extent a Loan Party possesses such document, report or filing) or Foreign Plan as the Administrative Agent shall reasonably request;
(j) promptly and in any event within ten Business Days after obtaining knowledge thereof, notice of any other development that has resulted in or could reasonably be expected to have a Material Adverse Effect;
(k) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request; and
(l) upon becoming aware of any newly arising environmental matters, facts or conditions affecting any property or facilities owned or operated by the Borrower or any of its Restricted Subsidiaries, or which relate to any Environmental Liabilities of the Borrower or any of its Restricted Subsidiaries, to the extent reflecting any matters which, in any such case, could reasonably be expected to result in a new Environmental Liability (or an increase in an existing Environmental Liability) in excess of $10.0 million, notify the Administrative Agent within five Business Days after becoming aware of such environmental matters and any Remedial Actions or other corrective actions of the Borrower or any of its Restricted Subsidiaries in respect thereof. Documents required to be delivered pursuant to Sections 5.01(a) and (b) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed in Section 9.01(a); (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are available via the XXXXX system of the SEC on the internet; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) Agents on behalf of such documentsitself or any Lender.
Appears in 1 contract
Samples: Term Loan Agreement (Wheeling Pittsburgh Corp /De/)
Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Administrative Agent (with sufficient copies for distribution to each Lenderthe Lenders) copies of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 45 60 days (or such shorter period for the filing of the Borrower’s Form 10-Q as may be required by the SEC) after the end of each of the first three Fiscal Quarters Quarter of each Fiscal Year commencing with the Fiscal Quarter ending March 31, 2010, a consolidated balance sheet of the Borrower and its Restricted Subsidiaries Trigen, respectively, unaudited financial statements of such Project Participant as of the end of such Fiscal Quarter and consolidated statements of earningsincome, stockholders’ equity retained earnings and cash flows flow of such Project Participant (including, in the case of the Borrower, a reconciliation of the Borrower and its Restricted Subsidiaries capital accounts for such Fiscal Quarter and for the same period in the prior Fiscal Year and for the period commencing at the end of the previous Fiscal
(b) as soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower and ending with Trigen, respectively (i) a copy of the annual audited financial statements (if any) for such Fiscal Year for such Project Participant, including therein a balance sheet as of the end of such Fiscal QuarterYear, statements of income, retained earnings and cash flow or other similar financial statements of such Project Participant including, in the case of the Borrower, a reconciliation of the Borrower capital accounts for such Fiscal Year, certified by a Financial Officer of KPMG Peat Marwick or by such other nationally recognized certified public accountant acceptable to the Borrower as fairly presentingMajority Lenders; provided, however, in all material respects, the financial position, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the absence of notes), it being understood and agreed that the delivery case of the Borrower’s Form 10-Q (as filed with the SEC), if certified as required in this Section 5.01(a), shall satisfy the requirements set forth in this clause to the extent such Form 10-Q includes the information specified in this clause, together with a certificate from a Financial Officer of the Borrower on behalf of the Borrower (a “Compliance Certificate”) such accountants containing a computation in reasonable detail of, and showing compliance with, each of the financial ratios and restrictions contained in the Financial Covenants and setting forth a calculation of the Total Net Leverage Ratio and to the effect certification that, in making the examination necessary for the signing of such certificateannual report by such accountants, such Financial Officer has they have not become aware of any Default or Event of Default that has occurred and is continuing, or, if such Financial Officer has they have become aware of such Default or Event of Default, describing such Default or Event of Default and the steps, if any, being taken to cure it;
(bc) as soon as available and in any event within 90 60 days (or such shorter period as may be required for the filing of the Borrower’s Form 10-K by the SEC) after the end of each Fiscal Year of the Borrower, commencing with the Fiscal Year ending December 31, 2010, a copy of the annual audit report for such Fiscal Year for the Borrower, including therein a consolidated balance sheet Quarter of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Year and consolidated statements of earningsTrigen, stockholders’ equity and cash flows a certificate of the Borrower and its Restricted Subsidiaries for such Fiscal YearTrigen, in each case accompanied respectively, executed by an opinion (without any Impermissible Qualification) of Deloitte & Touche LLP or other independent public accountants of recognized national standing selected by the Borrower and reasonably acceptable to the Administrative Agent, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP (it being understood and agreed that the delivery of the Borrower’s Form 10-K (as filed with the SEC) shall satisfy such delivery requirement in this clause to the extent such Form 10-K includes the information and opinion specified in this clause), together with a Compliance Certificate and a calculation of Excess Cash Flow for such Fiscal Year, and a certificate of the accounting firm that delivered its opinion with respect to such financial statements stating whether they obtained knowledge during the course of their examination officer of such financial statements of any Event of Project Participant, certifying that no Default exists (including no Default under any of the Financial Covenants andSection 8.1.6) or, if in the opinion of a Default exists, describing such accounting firm such an Event of Default has occurred, identifying such Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); provided that, for any period, the Borrower shall not be required to deliver such certificate if the Borrower certifies to the Administrative Agent that its is unable to do so following the use of commercially reasonable efforts;
(c) no later than February 28 of each Fiscal Year of the Borrower, commencing with the Fiscal Year beginning January 1, 2011, a detailed consolidated budget by Fiscal Quarter for such Fiscal Year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for each Fiscal Quarter during such Fiscal Year) and the next two succeeding Fiscal Years andsteps, promptly when availableif any, any significant revisions of such budgetsbeing taken to cure it;
(d) promptly upon receipt thereof, copies of all final material reports submitted as soon as possible and in any event on or prior to the Borrower by independent public accountants (except 30th day prior to the extent that would violate any confidentiality provision not waiveable by expected Term Loan Closing Date and within 30 days after the end of each succeeding Fiscal Year, the Operating Budget of the Borrower) in connection with each annual, interim or special audit of the books of the Borrower or any of its Restricted Subsidiaries made by such accountants, including any final management letters submitted by such accountants to management in connection with their annual audit;]*
(e) as soon as possible and in any event within five 60 days after the end of each Fiscal Quarter ending after the Term Loan Closing Date, a status report, certified by a senior officer of the Borrower, setting forth in reasonable detail satisfactory to the Administrative Agent, the calculation of the Fixed Charge Coverage Ratio in respect of such Fiscal Quarter;
(f) as soon as possible and in any event within 60 days after the end of each Fiscal Quarter ending after the -------- * SocGen to confirm. -79- 88 Term Loan Closing Date, if required, the Revenue Shortfall Certificate delivered pursuant to Section 3.1(b) of the Accounts Agreement;
(g) as soon as possible and in any event within three Business Days after becoming aware of the occurrence of any Default or Event of each Default, a statement of a Financial Officer of the Borrower on behalf senior officer of the Borrower setting forth details of such Default or Event of Default and the action (if any) which the Borrower has taken and it Subsidiaries have taken or propose proposes to take with respect thereto;
(fh) promptly as soon as possible and in any event within five three Business Days after obtaining knowledge of by the Borrower or Trigen of
(i) the occurrence of any material adverse development with respect to any litigation, action, proceeding, or labor controversy described in Section 7.1.7,
(ii) the commencement of any material labor controversy, dispute with or breach or default by any Contractor or any subcontractor, litigation, action or proceeding of the type described in Section 7.1.7, notice thereof and copies of all documentation relating thereto,
(iii) any challenge to, appeal of, termination of or adverse change or modification to any Permit or other Governmental Approval relating or applicable to the Project whether by judicial, administrative or other proceeding,
(iv) the occurrence of any adverse development with respect to any litigationTaking, action Partial Taking, Casualty Event or proceeding thatPartial Casualty Event,
(v) the occurrence of any matured or unmatured default by any Project Participant under any Project Document,
(vi) upon the Borrower obtaining knowledge thereof, individually or in the aggregateoccurrence with respect to any Project Participant, could reasonably be expected to have a Material Adverse Effect or Effect, or
(iivii) any material adverse change in the commencement of any litigation, action or proceeding that could reasonably be expected to have a Material Adverse Effect or that purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, notice thereof and, upon the request financial condition of the Administrative Agent, copies of all material documentation relating theretoBorrower or Trigen;
(gi) promptly after the sending or filing thereof, copies of all all
(i) applications, reports which the Borrower sends to any of its security holders (in their capacity as such) or any trustee, agent or other representative therefor, and all reports, registration statements (other than on Form S-8 or which any successor form) or other materials (including affidavits with respect to reports) which the Borrower or any of its Subsidiaries Affiliated Project Participant -80- 89 files with the SEC Securities and Exchange Commission or any national securities exchange;, and
(h) promptly upon becoming aware of the taking of any specific actions by the Borrower or any other Person to terminate any Pension Plan (other than a termination pursuant to Section 4041(b) of ERISA which can be completed without the Borrower or any Restricted Subsidiary having to provide more than $10.0 million in addition to the normal contribution required for the plan year in which termination occurs to make such Pension Plan sufficient), or the occurrence of an ERISA Event which would result in a Lien on the assets of the Borrower or any Restricted Subsidiary or in the incurrence by the Borrower or any Restricted Subsidiary of any payment obligations, fine or penalty which could reasonably be expected to have a Material Adverse Effect, notice thereof and copies of all documentation relating thereto;
(i) 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 or any Restricted Subsidiary or ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan and each Foreign Plan for which a report is prepared; (iii) all notices received by the Borrower or any Restricted Subsidiary or ERISA Affiliate from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating delivered pursuant to any Pension Plan, Multiemployer Plan (to the extent a Loan Party possesses such document, report or filing) or Foreign Plan as the Administrative Agent shall reasonably request;
(j) promptly and in any event within ten Business Days after obtaining knowledge thereof, notice of any other development that has resulted in or could reasonably be expected to have a Material Adverse Effect;
(k) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request; and
(l) upon becoming aware of any newly arising environmental matters, facts or conditions affecting any property or facilities owned or operated by the Borrower or any of its Restricted Subsidiaries, or which relate to any Environmental Liabilities of the Borrower or any of its Restricted Subsidiaries, to the extent reflecting any matters which, in any such case, could reasonably be expected to result in a new Environmental Liability (or an increase in an existing Environmental Liability) in excess of $10.0 million, notify the Administrative Agent within five Business Days after becoming aware of such environmental matters and any Remedial Actions or other corrective actions of the Borrower or any of its Restricted Subsidiaries in respect thereof. Documents Project Document not otherwise required to be delivered pursuant to Sections 5.01(athis Section 8.1;
(j) as soon as possible and (b) may be delivered electronically andin any event within 18 Business Days after the end of each calendar month, if so delivereda Certificate of Operational Results, shall be deemed to have been delivered on substantially in the date form of Exhibit O hereto, executed by an officer of the Borrower which certifies (i) the items set forth on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed in Section 9.01(a); Exhibit O and (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks™ or a substantially other similar electronic platform chosen by the Administrative Agent to be its electronic transmission system to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are available via the XXXXX system results of the SEC on the internet; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, if Project reasonably requested by the Administrative Agent;
(k) as soon as possible and in any event within one calendar month after the end of each calendar month occurring before the date on which Project Completion has been achieved, provide a monthly progress report, certified by a senior officer of the Borrower, setting forth in reasonable detail (and attaching all pertinent schedules, statements, Change Orders, etc.), covering with respect to such month,
(A) status of engineering, procurement, construction, vendor deliveries of equipment that is material to the Administrative Agent by electronic mail electronic versions Project, start-up activities, performance testing and the Borrower's adherence to the Construction Schedule and the Construction Budget, material revisions to the Construction Schedule, and Change-Orders,
(i.e., soft copiesB) Project Costs incurred and disbursements made in respect thereof in excess of more than 5% of such documents.Project Costs as shown in the Construction Budget,
(C) material milestones met during such month,
(D) retained amounts with respect to work done by any Contractor under any Construction Contract during such month,
(E) status of Governmental Approvals necessary for construction or operation of the Project or Project Completion, (F) status of safety, training, estimated work and material milestones to be completed in the next succeeding month,
Appears in 1 contract
Samples: Credit and Acceptance Agreement (Trigen Energy Corp)
Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to each Lender and the Administrative Agent (for distribution to each Lender) copies of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 45 days (or, if SEC Form 12b-25 is filed in respect of such Fiscal Quarter, 50 days or such shorter period for the filing of the Borrower’s 's Form 10-Q as may be required by the SEC) after the end of each of the first three Fiscal Quarters of each Fiscal Year commencing with of the Fiscal Quarter ending March 31, 2010Borrower, a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Quarter and consolidated statements of earnings, stockholders’ ' equity and cash flows flow of the Borrower and its Restricted Subsidiaries for such Fiscal Quarter and for the same period in the prior Fiscal Year and for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, certified by a Financial Officer of the Borrower as fairly presenting, in all material respects, the financial position, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the absence of notes)Borrower, it being understood and agreed that the delivery of the Borrower’s 's Form 10-Q (as filed with the SEC), if certified as required in this Section 5.01(aclause (a), shall satisfy the requirements set forth in this clause to the extent such Form 10-Q includes the information specified in this clause, together with a certificate from a Financial Officer of the Borrower on behalf of the Borrower (a “Compliance Certificate”"COMPLIANCE CERTIFICATE") containing a computation in reasonable detail of, and showing compliance with, each of the financial ratios and restrictions contained in the Financial Covenants and setting forth a calculation of the Total Net Leverage Ratio and to the effect that, in making the examination necessary for the signing of such certificate, such Financial Officer has not become aware of any Default or Event of Default that has occurred and is continuing, or, if such Financial Officer has become aware of such Default or Event of Default, describing such Default or Event of Default and the steps, if any, being taken to cure it;
(b) as soon as available and in any event within 90 days (or, if SEC Form 12b-25 is filed in respect of such Fiscal Year, 105 days or such shorter period as may be required for the filing of the Borrower’s 's Form 10-K by the SEC) after the end of each Fiscal Year of the Borrower, commencing with the Fiscal Year ending December 31, 2010, a copy of the annual audit report for such Fiscal Year for the Guarantor and its Borrower, including therein a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings, stockholders’ ' equity and cash flows flow of the Borrower and its Restricted Subsidiaries for such Fiscal Year, in each case accompanied by an opinion certified (without any Impermissible Qualification) of Deloitte in a manner reasonably acceptable to the Administrative Agent by Ernst & Touche Young LLP or other independent public accountants of recognized national standing selected by the Borrower and reasonably acceptable to the Administrative Agent, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP Agent (it being understood and agreed that the delivery of the Borrower’s 's Form 10-K (as filed with the SEC) ), if certified as required in this clause (b), shall satisfy such delivery requirement in this clause to the extent such Form 10-K includes the information and opinion specified in this clause), together with a Compliance Certificate and a calculation of Excess Cash Flow for such Fiscal Year, and a certificate of the accounting firm that delivered its opinion with respect to reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Default under any of the Financial Covenants and, if in the opinion of such accounting firm such an Event of Default has occurred, identifying such Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); provided that, for any period, the Borrower shall not be required to deliver such certificate if the Borrower certifies to the Administrative Agent that its is unable to do so following the use of commercially reasonable efforts;
(c) no later than February 28 of each Fiscal Year of the Borrower, commencing with the Fiscal Year beginning January 1, 2011, a detailed consolidated budget by Fiscal Quarter for such Fiscal Year (including a projected consolidated balance sheet and related statements of projected operations and cash flows flow as of the end of and for each Fiscal Quarter during such Fiscal Year) and the next two succeeding Fiscal Years and, promptly when available, any significant revisions of such budgets;
(d) promptly upon receipt thereof, copies of all final material reports submitted to the Borrower by independent certified public accountants (except to the extent that would violate any confidentiality provision not waiveable by the Borrower) in connection with each annual, interim or special audit of the books of the Borrower or any of its Restricted Subsidiaries made by such accountants, including any final management letters submitted by such accountants to management in connection with their annual audit;
(e) as soon as possible and in any event within five Business Days after becoming aware of the occurrence of any Default or Event of Default, a statement of a Financial Officer of the Borrower on behalf of the Borrower setting forth details of such Default or Event of Default and the action (if any) which the Borrower has taken and it Subsidiaries have taken or propose proposes to take with respect thereto;
(f) promptly as soon as possible and in any event within five Business Days after obtaining knowledge of (i) the occurrence of any adverse development with respect to any litigation, action or proceeding that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (ii) the commencement of any litigation, action or proceeding that could reasonably be expected to have a Material Adverse Effect or that purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, notice thereof and, upon the request of the Administrative Agent, and copies of all material documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its security holders (in their capacity as such) or any trustee, agent or other representative therefor), and all reports, registration statements (other than on Form S-8 or any successor form) or other materials (including affidavits with respect to reports) which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
(h) promptly upon becoming aware of the taking of any specific actions by the Borrower or any other Person to terminate any Pension Plan (other than a termination pursuant to Section 4041(b) of ERISA which can be completed without the Borrower or any Restricted Subsidiary having to provide more than $10.0 5.0 million in addition to the normal contribution required for the plan year in which termination occurs to make such Pension Plan sufficient), or the occurrence of an ERISA Event which would could result in a Lien on the assets of the Borrower any Loan Party or any Restricted a Subsidiary or in the incurrence by the Borrower or any Restricted Subsidiary a Loan Party of any payment obligationsliability, fine or penalty which could reasonably be expected to have a Material Adverse Effect, or any increase in the contingent liability of a Loan Party with respect to any post-retirement Welfare Plan benefit if the increase in such contingent liability which could reasonably be expected to have a Material Adverse Effect, notice thereof and copies of all documentation relating thereto;
(i) 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 or any Restricted Subsidiary Loan Party or ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan and each Foreign Plan for which a report is prepared; (iii) all notices received by the Borrower or any Restricted Subsidiary Loan Party or ERISA Affiliate from a Multiemployer Plan sponsor or any Governmental Authority governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Pension Plan, Multiemployer Plan (to the extent a Loan Party possesses such document, report or filing) or Foreign Plan as the Administrative Agent shall reasonably request;
(j) promptly and in any event within ten Business Days after obtaining knowledge thereof, notice of any other development that has resulted in or could reasonably be expected to have a Material Adverse Effect;
(k) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request; and
(l) upon becoming aware of any newly arising environmental matters, facts or conditions affecting any property or facilities owned or operated by the Borrower or any of its Restricted Subsidiaries, or which relate to any Environmental Liabilities of the Borrower or any of its Restricted Subsidiaries, to the extent reflecting any matters which, in any such case, could reasonably be expected to result in a new Environmental Liability (or an increase in an existing Environmental Liability) in excess of $10.0 million, notify the Administrative Agent within five Business Days after becoming aware of such environmental matters and any Remedial Actions or other corrective actions of the Borrower or any of its Restricted Subsidiaries in respect thereof. Documents required to be delivered pursuant to Sections 5.01(a) and (b) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed in Section 9.01(a); (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are available via the XXXXX system of the SEC on the internet; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
Financial Information, Reports, Notices, etc. The Borrower will furnish, or will cause to be furnished, to the Administrative each Lender and each Agent (for distribution to each Lender) copies of the following financial statements, reports, notices and information (except to the extent any such Lender shall have provided written notice to the Borrower and the Administrative Agent that it is not to receive any of the following statements, reports, notices and information:):
(a) within 45 days (Whether or such shorter period for not the filing Borrower is required to do so by the rules and regulations of the Borrower’s Form SEC, the Borrower will file with the SEC (unless the SEC will not accept such a filing) and, within 15 days of filing, or attempting to file, the same with the SEC, furnish to the Lenders (i) all quarterly and annual financial and other information with respect to the Borrower and its Subsidiaries that would be required to be contained in a filing with the SEC on Forms 10-Q as may and 10-K if the Borrower were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by the Borrower's certified independent accountants, and (ii) all current reports that would be required by to be filed with the SECSEC on Form 8-K if the Borrower were required to file such reports.
(b) The Borrower shall deliver to the Administrative Agent, within 90 days after the end of each fiscal year, an Officer's Certificate stating that a review of the first three Fiscal Quarters of each Fiscal Year commencing with the Fiscal Quarter ending March 31, 2010, a consolidated balance sheet activities of the Borrower and its Restricted Subsidiaries as during the preceding fiscal year has been made under the supervision of the end signing Officers with a view to determining whether the Borrower has kept, observed, performed and fulfilled its obligations under this Agreement, and further stating, as to each such Officer signing such certificate, that to the best of such Fiscal Quarter his or her knowledge the Borrower has kept, observed, performed and consolidated statements fulfilled each and every covenant contained in this Agreement and is not in default in the performance or observance of earnings, stockholders’ equity and cash flows any of the terms, provisions and conditions of this -38- 45 Agreement (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Borrower is taking or proposes to take with respect thereto) and its Restricted Subsidiaries for such Fiscal Quarter that to the best of his or her knowledge no event has occurred and for the same period remains in the prior Fiscal Year and for the period commencing at the end existence by reason of which payments on account of the previous Fiscal Year and ending with principal of or interest, if any, on the end of Term Loans is prohibited or if such Fiscal Quarterevent has occurred, certified by a Financial Officer description of the event and what action the Borrower is taking or proposes to take with respect thereto.
(c) So long as fairly presenting, in all material respectsnot contrary to the then current recommendations of the American Institute of Certified Public Accountants, the financial position, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP consistently applied (subject to normal year-end audit adjustments and the absence of notes), it being understood and agreed that the delivery financial statements delivered pursuant to clause (b) above shall be accompanied by a written statement of the Borrower’s Form 10-Q 's independent public accountants (as filed with the SEC), if certified as required in this Section 5.01(a), who shall satisfy the requirements set forth in this clause to the extent such Form 10-Q includes the information specified in this clause, together with be a certificate from a Financial Officer firm of the Borrower on behalf of the Borrower (a “Compliance Certificate”established national reputation) containing a computation in reasonable detail of, and showing compliance with, each of the financial ratios and restrictions contained in the Financial Covenants and setting forth a calculation of the Total Net Leverage Ratio and to the effect that, that in making the examination necessary for the signing certification of such certificatefinancial statements, such Financial Officer nothing has not become aware come to their attention that would lead them to believe that the Borrower has violated any provisions of any Default or Event of Default that has occurred and is continuing, Article VII hereof or, if any such Financial Officer violation has become aware occurred, specifying the nature and period of existence thereof, it being understood that such Default accountants shall not be liable directly or Event indirectly to any Person for any failure to obtain knowledge of Default, describing any such Default or Event of Default and the steps, if any, being taken to cure it;violation.
(bd) within 90 days (or such shorter period The Borrower shall, so long as may be required for the filing any of the Borrower’s Form 10-K by the SEC) after the end of each Fiscal Year of the BorrowerTerm Loans are outstanding, commencing with the Fiscal Year ending December 31, 2010, a copy of the annual audit report for such Fiscal Year for the Borrower, including therein a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of such Fiscal Year and consolidated statements of earnings, stockholders’ equity and cash flows of the Borrower and its Restricted Subsidiaries for such Fiscal Year, in each case accompanied by an opinion (without any Impermissible Qualification) of Deloitte & Touche LLP or other independent public accountants of recognized national standing selected by the Borrower and reasonably acceptable deliver to the Administrative Agent, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Restricted Subsidiaries as of the dates and for the periods specified on a consolidated basis in accordance with GAAP (it being understood and agreed that the delivery of the Borrower’s Form 10-K (as filed with the SEC) shall satisfy such delivery requirement in this clause to the extent such Form 10-K includes the information and opinion specified in this clause), together with a Compliance Certificate and a calculation of Excess Cash Flow for such Fiscal Year, and a certificate of the accounting firm that delivered its opinion with respect to such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of forthwith upon any Event of Default under any of the Financial Covenants and, if in the opinion of such accounting firm such an Event of Default has occurred, identifying such Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); provided that, for any period, the Borrower shall not be required to deliver such certificate if the Borrower certifies to the Administrative Agent that its is unable to do so following the use of commercially reasonable efforts;
(c) no later than February 28 of each Fiscal Year of the Borrower, commencing with the Fiscal Year beginning January 1, 2011, a detailed consolidated budget by Fiscal Quarter for such Fiscal Year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for each Fiscal Quarter during such Fiscal Year) and the next two succeeding Fiscal Years and, promptly when available, any significant revisions of such budgets;
(d) promptly upon receipt thereof, copies of all final material reports submitted to the Borrower by independent public accountants (except to the extent that would violate any confidentiality provision not waiveable by the Borrower) in connection with each annual, interim or special audit of the books of the Borrower or any of its Restricted Subsidiaries made by such accountants, including any final management letters submitted by such accountants to management in connection with their annual audit;
(e) as soon as possible and in any event within five Business Days after Officer becoming aware of the occurrence of any Default or Event of Default, a statement of a Financial Officer of the Borrower on behalf of the Borrower setting forth details of an Officer's Certificate specifying such Default or Event of Default and the what action (if any) which the Borrower and it Subsidiaries have taken is taking or propose proposes to take with respect thereto;.
(e) The Borrower shall so long as any of the Term Loans are outstanding, promptly notify the Administrative Agent and each Lender of the occurrence of any Change of Control and, within 30 days of any Change of Control, deliver to the Administrative Agent and each Lender a Change of Control Prepayment Notice.
(f) promptly and in any event within five Business Days after obtaining knowledge of (i) the occurrence of any adverse development with respect Any information required to any litigation, action or proceeding that, individually or in the aggregate, could reasonably be expected provided pursuant to have a Material Adverse Effect or (ii) the commencement of any litigation, action or proceeding that could reasonably be expected to have a Material Adverse Effect or that purports to affect the legality, validity or enforceability other provisions of this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, notice thereof and, upon the request of the Administrative Agent, copies of all material documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its security holders (in their capacity as such) or any trustee, agent or other representative thereforAgreement, and all reports, registration statements (other than on Form S-8 or any successor form) or other materials (including affidavits with respect to reports) which the Borrower or any of its Subsidiaries files with the SEC or any national securities exchange;
(h) promptly upon becoming aware of the taking of any specific actions by the Borrower or any other Person to terminate any Pension Plan (other than a termination pursuant to Section 4041(b) of ERISA which can be completed without the Borrower or any Restricted Subsidiary having to provide more than $10.0 million in addition to the normal contribution required for the plan year in which termination occurs to make such Pension Plan sufficient), or the occurrence of an ERISA Event which would result in a Lien on the assets of the Borrower or any Restricted Subsidiary or in the incurrence by the Borrower or any Restricted Subsidiary of any payment obligations, fine or penalty which could reasonably be expected to have a Material Adverse Effect, notice thereof and copies of all documentation relating thereto;
(i) 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 or any Restricted Subsidiary or ERISA Affiliate with the Internal Revenue Service with respect to each Pension Plan; (ii) the most recent actuarial valuation report for each Pension Plan and each Foreign Plan for which a report is prepared; (iii) all notices received by the Borrower or any Restricted Subsidiary or ERISA Affiliate from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Pension Plan, Multiemployer Plan (to the extent a Loan Party possesses such document, report or filing) or Foreign Plan as the Administrative Agent shall reasonably request;
(j) promptly and in any event within ten Business Days after obtaining knowledge thereof, notice of any other development that has resulted in or could reasonably be expected to have a Material Adverse Effect;
(k) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request; and
(l) upon becoming aware of any newly arising environmental matters, facts or conditions affecting any property or facilities owned or operated by the Borrower or any of its Restricted Subsidiaries, or which relate to any Environmental Liabilities of the Borrower or any of its Restricted Subsidiaries, to the extent reflecting any matters which, in any such case, could reasonably be expected to result in a new Environmental Liability (or an increase in an existing Environmental Liability) in excess of $10.0 million, notify the Administrative Agent within five Business Days after becoming aware of such environmental matters and any Remedial Actions or other corrective actions of the Borrower or any of its Restricted Subsidiaries in respect thereof. Documents required to be delivered pursuant to Sections 5.01(a) and (b) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed in Section 9.01(a); (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks™ or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are available via the XXXXX system of the SEC on the internet; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) Agents on behalf of such documentsitself or any Lender.
Appears in 1 contract
Samples: Term Loan Agreement (WHX Corp)
