Financial Statements, Certificates and Information. The Borrower will deliver to each of the Lenders: (a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification; (b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments); (c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower will provide copies of such sections to the Administrative Agent for distribution to the Lenders; (d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date; (e) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month; (f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary; (g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent or the Borrower; (h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 2 contracts
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD), Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrower Loan Parties will deliver (or cause to each of be delivered) to the LendersAdministrative Agent:
(ai) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the ParentBorrower, (i) the audited consolidated balance sheet of the Parent Borrower and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement audited statements of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, andand certified, in without qualification and without an expression of uncertainty as to the case ability of the Borrower or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other nationally recognized independent certified public accountants reasonably satisfactory to the Administrative Agent; and
(ii) as soon as practicable, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of CAI, the audited consolidated balance sheet of CAI and its Subsidiaries as at the end of such year, and the related consolidated statement audited statements of income and consolidated statement statements of cash flowflow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with GAAP, and certified, without qualificationqualification and without an expression of uncertainty as to the ability of any Loan Party or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent;
(bi) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of the Parent, (i) copies each fiscal year of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement statements of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement statements of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of CAI and its Subsidiaries as at the end of such quarter, and the related statements of income and statements of cash flow for the portion of the fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of CAI that the information contained in such financial statements fairly presents the financial position of CAI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days upon the reasonable request of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”Administrative Agent, the Borrower will shall provide copies consolidating financial statements of the type referred to in subsections (a) and (b) above for (i) each Guarantor (other than CAI) and (ii) the non-Guarantor Subsidiaries of the Borrower on an aggregated basis (i.e., consolidating with respect to the group of non-Guarantor Subsidiaries), all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of such sections Person that the information contained in such consolidating financial statements fairly presents the financial position of each of the relevant Person(s) on the date thereof (subject, in the case of those financial statements referred to the Administrative Agent for distribution in subsection (b), to the Lendersyear-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent Borrower in substantially the form of Exhibit C D hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 10 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(ei) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously simultaneously with the filing or mailing thereof, copies of all public filings containing material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the stockholders of CAI or any of its respective Subsidiaries (provided that so long as CAI is a public reporting company, the Parent filing of such reports on XXXXX will be deemed to satisfy this reporting requirement) and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by CAI or any of its Subsidiaries, copies of each public notice or other public correspondence received from the BorrowerSecurities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such agency regarding any financial or other operational results of any Loan Party or any of its respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) within forty-five (45) days of the end of each calendar month and, in any case, simultaneously with the delivery of a Loan Request in accordance with §2.9, and at such other times as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, the date of such Loan Request or other date so requested by the Administrative Agent, as the case may be;
(g) simultaneously with the delivery of the financial statements referred to in subsection (f) above, an equipment report with respect to the Eligible Railcars and Eligible Direct Finance Leases, in form and detail reasonably satisfactory to the Administrative Agent, setting forth (A) the aggregate number, Aggregate Net Book Value, Aggregate Finance Lease Value and weighted average age of Eligible Railcars, type(s) of Eligible Railcars owned by the Borrower and its Subsidiaries, and an updated listing of the Eligible Railcars then included in the Borrowing Base, the Railcars and their corresponding marks and (B) type(s) of lease(s) (e.g., per diem lease, net lease, full service lease or finance leases), a listing of each Eligible Direct Finance Lease, the weighted average remaining duration of each Eligible Direct Finance Lease and the leases to which the Eligible Railcars are subject, identification of each lease of an Eligible Railcar that is then on lease to a Permitted Mexican Lessee and the then unsecured debt credit rating of each such Permitted Mexican Lessee and a listing of all Tank Railcars, the Net Book Value or Finance Lease Value, as the case may be, of each such Tank Railcar owned by the Borrower and each such Tank Railcar that is Flammable Cargo Tank Railcar.
(h) within one hundred twenty (120) days after the end of each fiscal year, (x) projections of the annual operating budget of CAI on a consolidated basis, balance sheets and cash flow statements for the next fiscal year, and (y) the projections of the annual operating results of Borrower and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for the next fiscal year; and
(i) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or one of the Arranger Arrangers will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower such Loan Party or any of its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks DebtX or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its their securities) (each, a “Public Lender”). The Borrower Each Loan Party hereby agrees that so long as such 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 Borrower Materials 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 Borrower such Loan Party shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Fronting BankL/C Issuer, the LC Administrator Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower such Loan Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.1316.4); (y) 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 Arranger Arrangers shall be entitled to treat any the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, no Loan Party shall be under any obligation to xxxx the Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower Parent Guarantor will deliver furnish to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90i) Within 180 days after the end of each fiscal year of the ParentParent Guarantor, (i) the consolidated balance sheet sheets of the Parent Guarantor and its Subsidiaries and the consolidating balance sheet of the Parent and its consolidated Subsidiaries, each as at the end of such fiscal year, and consolidated statements of income, cash flows and retained earnings of the related Parent Guarantor and its consolidated statement of income and consolidated statement of cash flow and consolidating statement of income Subsidiaries for such yearthe fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, and, in the case accompanied by a report and opinion of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower KPMG LLP (or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any such other independent certified public accountant engaged pursuant accountants of nationally recognized standing as are reasonably acceptable to §6.3(c) the Lenders), which report and opinion shall have been prepared in accordance with generally accepted auditing standards and shall be unqualified as to "going concern" status, scope of audit or conformity with GAAP and (ii); ) within 180 days after the end of each fiscal year of the Borrower, consolidated balance sheet sheets of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its consolidated Subsidiaries, each as at the end of such fiscal year, and consolidated statements of income, cash flows and retained earnings of the related Borrower and its consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow Subsidiaries for such yearthe fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, andexcept for the lack of footnotes thereto, in and certified by the case principal financial or principal accounting officer of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualificationBorrower;
(b) as As soon as practicableavailable and, but in any event not later than forty-five event, within ninety (4590) days after the end of each of the first three fiscal quarters in each fiscal year of the Parent, (i) copies of the unaudited Parent Guarantor thereafter a consolidated balance sheet of the Parent Guarantor and its consolidated Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such fiscal quarter, and the related consolidated statement statements of income and reconciliation of surplus of the Parent Guarantor and its consolidated statement of cash flow and consolidating statement of income Subsidiaries for the portion of the Parent’s fiscal year then elapsedended, all in reasonable detail and detail, prepared in accordance with GAAPgenerally accepted accounting principles consistently applied, together with a certification except for the lack of footnotes thereto, and certified by the principal financial or principal accounting officer of the Parent that Guarantor or each the information contained in such financial statements fairly presents Borrower, as the financial position of the Parent and its Subsidiaries on the date thereof (case may be, but subject to normal, recurring year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared Following a request therefor by the Agent, within 30 days after the end of each fiscal year of the Parent Guarantor, Parent Guarantor's and the Borrower’s or 's financial forecast for the Parent’s accountantsfive fiscal years following such fiscal year (the first forecast subject to this clause (c) being that for the 2006 fiscal year), if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”including its income, “Illegal Acts” balance sheet and “Misstatements Due to Fraud”, the Borrower will provide copies of such sections to the Administrative Agent for distribution to the Lenderscash flow forecast;
(di) simultaneously Concurrently with the delivery of the each financial statements referred statement pursuant to in subsections paragraphs (a) and (b) aboveof this Section 6.4, a statement certified Compliance Certificate, signed on behalf of the Parent Guarantor by the its principal financial or principal accounting officer and (ii) on each Payment Date, a Borrowing Base Certificate signed on behalf of the Parent in substantially Borrower by an Authorized Officer as to the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet DateBorrower's Borrowing Base as at such date;
(e) no later than Promptly upon receipt thereof, copies of all management letters of substance and other reports of substance which are submitted to the tenth (10th) Business Day of each month, or, following Borrower or the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially Parent Guarantor by their accountants in the form of Exhibit D attached hereto, signed by an officer connection with any annual or interim audit of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value books of the Eligible Collateral and Borrower or the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding monthParent Guarantor made by such accountants;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereofPromptly upon their becoming available, copies of all material of a such other financial nature filed statements and reports, if any, as the Borrower and/or the Parent Guarantor may be required to file with the Securities and Exchange Commission or sent any similar or corresponding governmental commission, department or agency substituted therefor, or any similar or corresponding governmental commission, department, board, bureau, or agency, federal or state, to the stockholders extent that such are publicly available;
(g) If and when the Borrower and/or the Parent Guarantor gives or is required to give notice to the PBGC of any "Reportable Event" (as defined in Section 4043 of ERISA) with respect to any Plan that might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that any member of the Parent Controlled Group or the Borrowerplan administrator of any Plan has given or is required to give notice of any such Reportable Event, a copy of the notice of such Reportable Event given or required to be given to the PBGC;
(h) from time to time such other financial data and information as Upon the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu request of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) Agent, within 180 days after the end of each fiscal year of the Parent Guarantor, an updated Dynamar Report (or (b) or §6.4(g) (to the extent any equivalent such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mailreport) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 thereofLessee; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”and
Appears in 1 contract
Samples: Credit Agreement (Interpool Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower will provide copies of such sections to the Administrative Agent for distribution to the Lenders;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(e) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent or the Borrower;
(h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower Mont Re or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower Mont Re and its Subsidiaries and the consolidating balance sheet of the Borrower Mont Re and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower Mont Re and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower Mont Re and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the BorrowerMont Re’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower Mont Re that the information contained in such financial statements fairly presents the financial position of the Borrower Mont Re and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s Borrowers’ accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower Borrowers will provide copies of such sections to the Administrative Agent for distribution to the LendersAgent;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(e) no later than the tenth (10th) Business Day promptly upon knowledge thereof, any announcement by A.M. Best & Company, Inc. of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially any change in or change in the form outlook for a Financial Strength Rating of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding monthany Insurance Subsidiary;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower Mont Re and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent or the BorrowerBorrowers;
(h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower Borrowers shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower Mont Re posts such documents, or provides a link thereto on the BorrowerMont Re’s website on the Internet at the website address listed on Schedule 14.714.6; or (ii) on which such documents are posted on the Borrower’s Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower 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 (y) the Borrower Mont Re shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower Borrowers shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 either Borrower or its securities) (each, a “Public Lender”). The Each Borrower hereby agrees that (w) all Borrower Materials 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 Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the either Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.1314.12); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Loan Parties will deliver (or cause to each of be delivered) to the LendersAdministrative Agent:
(ai) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the ParentBorrower, (i) the audited consolidated balance sheet of the Parent Borrower and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement audited statements of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, andand certified, in without qualification and without an expression of uncertainty as to the case ability of the Borrower or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other nationally recognized independent certified public accountants reasonably satisfactory to the Administrative Agent; and
(ii) as soon as practicable, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of CAI, the audited consolidated balance sheet of CAI and its Subsidiaries as at the end of such year, and the related consolidated statement audited statements of income and consolidated statement statements of cash flowflow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with GAAP, and certified, without qualificationqualification and without an expression of uncertainty as to the ability of any Loan Party or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent;
(bi) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of the Parent, (i) copies each fiscal year of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement statements of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement statements of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of CAI and its Subsidiaries as at the end of such quarter, and the related statements of income and statements of cash flow for the portion of the fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of CAI that the information contained in such financial statements fairly presents the financial position of CAI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days upon the reasonable request of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”Administrative Agent, the Borrower will shall provide copies consolidating financial statements of the type referred to in subsections (a) and (b) above for (i) each Guarantor (other than CAI) and (ii) the non-Guarantor Subsidiaries of the Borrower on an aggregated basis (i.e., consolidating with respect to the group of non-Guarantor Subsidiaries), all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of such sections Person that the information contained in such consolidating financial statements fairly presents the financial position of each of the relevant Person(s) on the date thereof (subject, in the case of those financial statements referred to the Administrative Agent for distribution in subsection (b), to the Lendersyear-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent Borrower in substantially the form of Exhibit C D hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 10 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(ei) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously simultaneously with the filing or mailing thereof, copies of all public filings containing material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the stockholders of CAI or any of its respective Subsidiaries (provided that so long as CAI is a public reporting company, the Parent filing of such reports on XXXXX will be deemed to satisfy this reporting requirement) and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by CAI or any of its Subsidiaries, copies of each public notice or other public correspondence received from the BorrowerSecurities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such agency regarding any financial or other operational results of any Loan Party or any of its respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) within forty-five (45) days of the end of each calendar month and, in any case, simultaneously with the delivery of a Loan Request in accordance with §2.9, and at such other times as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, the date of such Loan Request or other date so requested by the Administrative Agent, as the case may be;
(g) simultaneously with the delivery of the financial statements referred to in subsection (f) above, an equipment report with respect to the Eligible Railcars and Eligible Direct Finance Leases, in form and detail reasonably satisfactory to the Administrative Agent, setting forth (A) the aggregate number, Aggregate Net Book Value, Aggregate Finance Lease Value and weighted average age of Eligible Railcars, type(s) of Eligible Railcars owned by the Borrower and its Subsidiaries, and an updated listing of the Eligible Railcars then included in the Borrowing Base, the Railcars and their corresponding marks, (B) each Eligible Railcar that has been re-marked (and the old and new marks) during the calendar quarter ended on the date of such financial statements, and type(s) of lease(s) (e.g., per diem lease, net lease, full service lease or finance leases), a listing of each Eligible Direct Finance Lease, the weighted average remaining duration of each Eligible Direct Finance Lease and the leases to which the Eligible Railcars are subject, identification of each lease of an Eligible Railcar that is then on lease to a Permitted Mexican Lessee and the then unsecured debt credit rating of each such Permitted Mexican Lessee and a listing of all Tank Railcars, the Net Book Value or Finance Lease Value, as the case may be, of each such Tank Railcar owned by the Borrower and each such Tank Railcar that is Flammable Cargo Tank Railcar.
(h) within one hundred twenty (120) days after the end of each fiscal year, (x) projections of the annual operating budget of CAI on a consolidated basis, balance sheets and cash flow statements for the next fiscal year, and (y) the projections of the annual operating results of Borrower and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for the next fiscal year; and
(i) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower such Loan Party or any of its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks DebtX or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its their securities) (each, a “Public Lender”). The Borrower Each Loan Party hereby agrees that so long as such 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 Borrower Materials 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 Borrower such Loan Party shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting BankL/C Issuer, the LC Administrator Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower such Loan Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.1316.4); (y) 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 Arranger shall be entitled to treat any the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, no Loan Party shall be under any obligation to xxxx the Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower Company will deliver to each of the LendersIssuer:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower Company or any of their Subsidiaries to continue as going concernsconcerns (other than any expression of uncertainty that is expressly solely with respect to, or expressly resulting solely from any potential inability to satisfy the financial covenant set forth in Section 6.08(a) of this Agreement on a future date or in a future period), by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(cSection 5.03(c) and (ii); ) the consolidated balance sheet of the Borrower Company and its Subsidiaries and the consolidating balance sheet of the Borrower Company and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower Company and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower Company and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the BorrowerCompany’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower Company that the information contained in such financial statements fairly presents the financial position of the Borrower Company and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the BorrowerCompany’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and or “Misstatements Due to Fraud”, the Borrower Company will provide copies of such sections to the Administrative Agent for distribution to the LendersIssuer;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(e) no later than (i) the tenth fifth (10th5th) Business Day of each month, or, following month and (ii) one Business Day after a request from the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may requestIssuer, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D C attached hereto, signed by an officer of the BorrowerCompany, certifying compliance with the collateral coverage requirement set forth in §6.8 Section 5.08 and demonstrating, in detail satisfactory to the Administrative AgentIssuer, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding monthmonth or Business Day, as the case may be;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Yearsfiscal years, but in any event within 125 days after the end of each Fiscal Year fiscal year of the Borrower Company and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders of the Parent or the Borrower;Company; and
(h) from time to time such other financial data and information as the Administrative Agent or any Lender Issuer may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or Section 5.04(a), (b) or §6.4(g(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSEC) 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 materials are publicly available as posted on the Borrower’s website on the Internet at the website address listed on Schedule 14.7Electronic Data Gathering, Analysis and Retrieval system (XXXXX); or (ii) on which such documents are posted on the BorrowerCompany’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have Issuer has access (whether a commercial, commercial or third-party website or whether sponsored by the Administrative Agentwebsite); provided that: (xA) upon written request by the Borrower Issuer, the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies Issuer until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender Issuer and (yB) the Borrower Company shall notify the Administrative Agent and each Lender Issuer (by telecopier facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent Issuer by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower Mont Re or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower Mont Re and its Subsidiaries and the consolidating balance sheet of the Borrower Mont Re and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower Mont Re and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower Mont Re and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the BorrowerMont Re’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower Mont Re that the information contained in such financial statements fairly presents the financial position of the Borrower Mont Re and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s Borrowers’ accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower Borrowers will provide copies of such sections to the Administrative Agent for distribution to the LendersAgent;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C D hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(e) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D E attached hereto, signed by an officer of the BorrowerMont Re, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value fair market value (as valued by Bloomberg or, if Bloomberg is not available, another quotation service reasonably acceptable to the Administrative Agent) of the Eligible Collateral Qualified Securities and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower Mont Re and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent or the BorrowerBorrowers;
(h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower Borrowers shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent, with sufficient copies for each of the LendersBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of Holdings and the ParentBorrower, (i) the consolidated balance sheet of the Parent Holdings and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, andand certified without qualification by Deloitte & Touche or by other independent certified public accountants satisfactory to the Agent, in and (ii) the case of the consolidated unaudited consolidating balance sheet of Holdings and its Subsidiaries as at the end of such year, and the related consolidated unaudited consolidating statement of income and consolidated statement unaudited consolidating statements of cash flowflow for such year, certifiedeach setting forth in comparative form the figures for the previous fiscal year and all such consolidating statements to be in reasonable detail, without qualificationprepared by management in accordance with the past financial practice of Holdings and its Subsidiaries and that the information contained in such financial statements fairly presents the financial position of Holdings and its Subsidiaries on the date thereof and for the fiscal period then ended;
(b) as soon as practicable, but in any event not later than forty-forty- five (45) days after the end of each of the fiscal quarters of the ParentBorrower, (i) copies of the unaudited consolidated and consolidating balance sheet sheets of the Parent Holdings and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement and consolidating statements of income and consolidated statement and consolidating statements of cash flow and consolidating statement of income for the portion of the Parent’s Holdings' fiscal year then elapsed, each setting forth in comparative form the figures for the previous fiscal year and a comparison setting forth the corresponding figures from the budgeted or projected figures set forth in the projections described in (S)7.4 hereof for such period and all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or generally accepted accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarterprinciples, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, each case together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower Holdings and its Subsidiaries on the date thereof and for the fiscal period then ended (subject to year-end adjustments);
(c) Within as soon as practicable, but in any event within thirty (30) days after the end of receipt each month in each fiscal year of any audit committee report the Borrower, unaudited monthly consolidated and consolidating financial statements of Holdings and its Subsidiaries for such month, each setting forth in comparative form the figures for the previous fiscal year and a comparison setting forth the corresponding figures from the budgeted or projected figures set forth in the projections described in (S)7.4 for such period, prepared in accordance with generally accepted accounting principles, together with a certification by the Borrower’s principal financial or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections accounting officer of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower will provide copies that the information contained in such financial statements fairly presents the financial condition of such sections Holdings and its Subsidiaries on the date thereof and for the fiscal period then ended (subject to the Administrative Agent for distribution to the Lendersyear-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent Borrower in substantially the form of Exhibit C hereto D (a “the "Compliance Certificate”") hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 (S)10 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the Balance Sheet Date;
(e) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent Holdings or the Borrower;
(f) not later than the beginning of each fiscal year of the Borrower, projections of Holdings, the Borrower and their Subsidiaries updating those projections delivered to the Banks and referred to in (S)7.4.2 or, if applicable, updating any later such projections delivered pursuant to this (S)8.4(f);
(g) contemporaneously with the delivery thereof, copies of all accountants' management letters delivered to Holdings, the Borrower or any of their Subsidiaries; and
(h) from time to time such other financial data and information as the Administrative Agent or any Lender Bank may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender The Banks and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender agree that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, they will treat in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 confidence all financial information with respect to Holdings and its Subsidiaries which has not become public, and will not, without the consent of the Borrower, disclose such information to any third party (other than an affiliate of such Bank or the Agent), and, if any representative or agent of the Banks or the Agent shall not be an employee of one of the Banks or the Agent or any affiliate of the Banks or the Agent, such designee shall be reputable and of recognized standing and shall agree to treat in confidence the information obtained during any such inspection and, without the prior written consent of the Borrower, not to disclose such information to any third party or make use of such information for personal gain, it being agreed that such confidential information is intended to be used primarily in connection with the evaluation of the performance of Holdings, the Borrower and their Subsidiaries by the Banks under the Loan Documents and the enforcement of rights and obligations under the Loan Documents, and are not to be used for the purpose of evaluating whether to extend credit to or its securities) (eachadvise any direct competitor of the Borrower. Notwithstanding the foregoing, a “Public Lender”). The the Borrower hereby agrees that (w) all Borrower Materials that authorizes the Agent and each of the Banks to disclose information obtained pursuant to this Credit Agreement which has not become public to banks or other financial institutions who are participants or assignees or potential participants or assignees of the Revolving Credit Loans and/or Letters of Credit made or to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that hereunder with the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as Borrower's consent not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” unreasonably withheld, and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investorwhere required or requested by governmental or regulatory authorities.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Loan Parties will deliver (or cause to each of be delivered) to the LendersAdministrative Agent:
(ai) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the ParentBorrower, (i) the audited consolidated balance sheet of the Parent Borrower and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement audited statements of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, andand certified, in without qualification and without an expression of uncertainty as to the case ability of the Borrower or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other nationally recognized independent certified public accountants reasonably satisfactory to the Administrative Agent; and
(ii) as soon as practicable, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of CAI, the audited consolidated balance sheet of CAI and its Subsidiaries as at the end of such year, and the related consolidated statement audited statements of income and consolidated statement statements of cash flowflow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with GAAP, and certified, without qualificationqualification and without an expression of uncertainty as to the ability of any Loan Party or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent;
(bi) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of the Parent, (i) copies each fiscal year of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement statements of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement statements of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of CAI and its Subsidiaries as at the end of such quarter, and the related statements of income and statements of cash flow for the portion of the fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of CAI that the information contained in such financial statements fairly presents the financial position of CAI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days upon the reasonable request of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”Administrative Agent, the Borrower will shall provide copies consolidating financial statements of the type referred to in subsections (a) and (b) above for (i) each Guarantor (other than CAI) and (ii) the non-Guarantor Subsidiaries of the Borrower on an aggregated basis (i.e., consolidating with respect to the group of non-Guarantor Subsidiaries), all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of such sections Person that the information contained in such consolidating financial statements fairly presents the financial position of each of the relevant Person(s) on the date thereof (subject, in the case of those financial statements referred to the Administrative Agent for distribution in subsection (b), to the Lendersyear-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent Borrower in substantially the form of Exhibit C D hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 10 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(ei) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously simultaneously with the filing or mailing thereof, copies of all public filings containing material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the stockholders of CAI or any of its respective Subsidiaries (provided that so long as CAI is a public reporting company, the Parent filing of such reports on XXXXX will be deemed to satisfy this reporting requirement) and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by CAI or any of its Subsidiaries, copies of each public notice or other public correspondence received from the BorrowerSecurities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such agency regarding any financial or other operational results of any Loan Party or any of its respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) within forty-five (45) days of the end of each calendar month and, in any case, simultaneously with the delivery of a Loan Request in accordance with §2.9, and at such other times as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, the date of such Loan Request or other date so requested by the Administrative Agent, as the case may be;
(g) simultaneously with the delivery of the financial statements referred to in subsection (f) above, an equipment report with respect to the Eligible Railcars and Eligible Direct Finance Leases, in form and detail reasonably satisfactory to the Administrative Agent, setting forth (A) the aggregate number, Aggregate Net Book Value, Aggregate Finance Lease Value and weighted average age of Eligible Railcars, type(s) of Eligible Railcars owned by the Borrower and its Subsidiaries, and an updated listing of the Eligible Railcars then included in the Borrowing Base, the Railcars and their corresponding marks and (B) type(s) of lease(s) (e.g., per diem lease, net lease, full service lease or finance leases), a listing of each Eligible Direct Finance Lease, the weighted average remaining duration of each Eligible Direct Finance Lease and the leases to which the Eligible Railcars are subject, and identification of each lease of an Eligible Railcar that is then on lease to a Permitted Mexican Lessee and the then unsecured debt credit rating of each such Permitted Mexican Lessee;
(h) within one hundred twenty (120) days after the end of each fiscal year, (x) projections of the annual operating budget of CAI on a consolidated basis, balance sheets and cash flow statements for the next fiscal year, and (y) the projections of the annual operating results of Borrower and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for the next fiscal year; and
(i) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower such Loan Party or any of its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks DebtX or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its their securities) (each, a “Public Lender”). The Borrower Each Loan Party hereby agrees that so long as such 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 Borrower Materials 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 Borrower such Loan Party shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting BankL/C Issuer, the LC Administrator Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower such Loan Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.1316.4); (y) 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 Arranger shall be entitled to treat any the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, no Loan Party shall be under any obligation to xxxx the Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §Section 6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower will provide copies of such sections to the Administrative Agent for distribution to the Lenders;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §Section 8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(e) no later than (i) the tenth (10th) Business Day of each month, or, following the occurrence month and during the continuance of an Event of Default, at such other times as (ii) one Business Day after a request from the Administrative Agent may requestAgent, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §Section 6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding monthmonth or Business Day, as the case may be;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent or the Borrower;
(h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §Section 6.4(a) or (b) or §Section 6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.714.5; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger Arrangers will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 Borrower shall be deemed to have authorized the Administrative Agent, the ArrangerArrangers, the Fronting Bank, the LC Administrator and the Lenders to treat such the Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such the Borrower Materials constitute Information, they shall be treated as set forth in §14.13Section 14.10); (y) 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 Arranger Arrangers shall be entitled to treat any the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the LendersAdministrative Agent:
(a) (i) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the ParentBorrower, (iA) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheet of the Borrower and its SubsidiariesBorrower, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, and solely in the case respect of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flowstatements, certified, without qualificationqualification and without an expression of uncertainty as to the ability of the Borrower or any of its Subsidiaries to continue as going concerns, and in respect of the consolidating financial statements, certified consistent with past practices, by PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent, and (B) the Statutory Annual Financial Statements of each Insurance Subsidiary for such fiscal year, in each case to be delivered to the Administrative Agent simultaneously with the delivery of such financial statements to the Insurance Regulatory Authorities, and (ii) simultaneously with delivery to the Insurance Regulatory Authorities and in any event not later than one hundred eighty (180) days after the end of each fiscal year of the Borrower, the audited Statutory Annual Financial Statements of each Insurance Subsidiary for such fiscal year, together with an actuarial opinion and management discussion and analysis for each such Insurance Subsidiary;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, Borrower (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (iiA) copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its SubsidiariesBorrower, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGAAP (except for provisions for footnotes, reserves and accruals and subject to year-end adjustments), and (B) the Statutory Quarterly Financial Statements of each Insurance Subsidiary for such fiscal quarter, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (except for provisions for footnotes, reserves and accruals and subject to year-end adjustments), in each case to be delivered to the Administrative Agent simultaneously with the delivery of such financial statements to the Insurance Regulatory Authorities, and (ii) a summary of all Portfolio Investments, together with valuations for such Portfolio Investments as of the end of such fiscal quarter;
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower will provide copies of such sections to the Administrative Agent for distribution to the Lenders;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a statement certified by the principal financial or accounting officer of the Parent Borrower in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 9 as of the end of the period then ended and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date, and (ii) a summary of all material changes to reinsurance coverage during the period covered by such financial statements;
(ed) no later than the tenth within ten (10th10) Business Day days of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, 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 material of a financial nature filed annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the Securities and Exchange Commission or sent to the stockholders of Borrower;
(e) not later than sixty (60) days after the Parent or beginning of each fiscal year of the Borrower, the annual budget of the Borrower and its Subsidiaries;
(f) not later than one hundred twenty (120) days after the beginning of each fiscal year of the Borrower, an actuarial opinion (accompanied by reasonably sufficient detail) as to the adequacy of the Reserves of Safety Insurance, and, if any other Insurance Subsidiary represents twenty percent (20%) or more of the Aggregate Statutory Surplus, of such Insurance Subsidiary, as at the last day of such fiscal year. Each such opinion shall be prepared and delivered by PricewaterhouseCoopers LLP or such other actuary of recognized national standing chosen by the Borrower and reasonably acceptable to the Administrative Agent. Each such opinion shall be in scope and detail reasonably satisfactory to the Administrative Agent;
(g) within ten (10) days of the receipt thereof, copies of all accountants’ management letters; and
(h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basisLender, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 14.7; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials 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 Borrower shall be deemed to have authorized through the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investormay reasonably request.”
Appears in 1 contract
Samples: Revolving Credit Agreement (Safety Insurance Group Inc)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Parent, (i) the consolidated balance sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower Mont Re or any of their Subsidiaries to continue as going concerns, by PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the consolidated balance sheet of the Borrower Mont Re and its Subsidiaries and the consolidating balance sheet of the Borrower Mont Re and its Subsidiaries, each as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, and, in the case of the consolidated balance sheet and related consolidated statement of income and consolidated statement of cash flow, certified, without qualification;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Parent, (i) copies of the unaudited consolidated balance sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for the portion of the Parent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Parent that the information contained in such financial statements fairly presents the financial position of the Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Borrower Mont Re and its Subsidiaries and the unaudited consolidating balance sheet of the Borrower Mont Re and its Subsidiaries, each as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income and consolidating statement of cash flow for the portion of the BorrowerMont Re’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower Mont Re that the information contained in such financial statements fairly presents the financial position of the Borrower Mont Re and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower’s or the Parent’s Borrowers’ accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” and “Misstatements Due to Fraud”, the Borrower Borrowers will provide copies of such sections to the Administrative Agent for distribution to the LendersAgent;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of Exhibit C D hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(e) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D E attached hereto, signed by an officer of the BorrowerMont Re, certifying compliance with the collateral coverage requirement set forth in §6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the Fair Market Value of the Eligible Collateral and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) five days after the date filed with the relevant Governmental Authority for each of its Fiscal Years, but in any event within 125 days after the end of each Fiscal Year of the Borrower Mont Re and each other Insurance Subsidiary, a copy of the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent or the BorrowerBorrowers;
(h) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; In the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower Borrowers shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower Mont Re posts such documents, or provides a link thereto on the BorrowerMont Re’s website on the Internet at the website address listed on Schedule 14.715.7; or (ii) on which such documents are posted on the Borrower’s Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower 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 (y) the Borrower Mont Re shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower Mont Re shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Fronting Bank materials and/or information provided by or on behalf of the Borrower Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 either Borrower or its securities) (each, a “Public Lender”). The Borrower Borrowers hereby agrees agree that (w) all Borrower Materials 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 Borrower Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the either Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §14.1315.13); (y) 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 Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)