Financial Statements, Certificates and Other Information. Deliver to the Administrative Agent (for delivery to each Lender), in form and detail reasonably satisfactory to the Administrative Agent: (a) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings, the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal quarter and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of Holdings as having been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply. (b) as soon as available and in any event within 90 days after the end of each fiscal year of Holdings, a copy of the annual audit report for such year for Holdings and its Subsidiaries, containing the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and cash flows of Holdings and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants of recognized national standing (that does not include any “going concern” or similar qualification, or any qualification as to the scope of their audit) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply; (c) as soon as possible and in any event within five days upon any Responsible Officer of Holdings obtaining actual knowledge of the occurrence of any Default continuing on the date of such statement, a statement of the chief financial officer of Holdings setting forth details of such Default and the action that Holdings and the Borrowers have taken and proposes to take with respect thereto; (d) promptly after the sending or filing thereof, copies of all reports Holdings sends to its securityholders generally, and copies of all reports on Form 10-K, 10-Q or 8-K (other than pursuant to Rule 14a-12 of the Securities Exchange Act of 1934, as amended) and registration statements for the public offering (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files with the SEC or any national securities exchange; (e) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of the type described in clause (i) or (ii) of Section 5.06; and (f) promptly after the occurrence thereof, of any material change in accounting policies or financial reporting practices by Holdings or any Subsidiary; and (g) promptly after any written request therefor, such other information with respect to Holdings or any of its Material Subsidiaries as any Lender, through the Administrative Agent, may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in clauses (a) and (b) above at the times specified therein. Documents required to be delivered pursuant to Section 6.09(a), (b) and (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address xxx.xxx.xxx or another website address provided by Holdings in a written notice to the Administrative Agent; (ii) on which such documents are posted on a publicly available website maintained by or on behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), or (iii) on which such documents are posted on behalf of Holdings on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Holdings shall deliver paper copies of such documents to the Administrative Agent, for delivery by the Administrative Agent to any Lender that requests Holdings to deliver such paper copies, until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (ii) except with respect to documents posted on the XXXXX Website, Holdings shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. Holdings and each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby 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,” Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, any Borrower or any of their securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” 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 Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Western Digital Corp), Credit Agreement (Western Digital Corp)
Financial Statements, Certificates and Other Information. Deliver (a) Deliver, or cause the Company to deliver, to the Administrative Agent (for delivery prompt further distribution to each Lender), in form and detail reasonably satisfactory to the Administrative Agent:
(ai) as soon as available and in any event within 45 90 days after the end of each Fiscal Year of the Company (commencing with the Fiscal Year ending December 31, 2023) (or such later date as maybe be permitted for the filing of the Company’s Annual report on Form 10-K for the applicable fiscal year, but in no event later than 120 days after the end of each Fiscal Year of the Company), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such Fiscal Year, and the related consolidated statements of income or operations for such Fiscal Year, together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Company, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of RSM US LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” qualification, “going concern” exception or “going concern” explanatory paragraph (other than a “going concern” qualification, exception or explanatory paragraph resulting solely from an upcoming maturity date under any Indebtedness occurring within one year from the time such opinion is delivered) or any qualification or exception paragraph as to the scope of such audit; provided that the foregoing financial statements are accompanied by a reconciliation that explains or otherwise shows in reasonable detail the differences between the information relating to the Company and its Subsidiaries, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand and are accompanied by consolidating financial statements that segregate out the Borrower; and
(ii) in connection with each of the first three fiscal quarters of each Fiscal Year of the Company (commencing with the fiscal year quarter ending September 30, 2023), within 45 days after the end of Holdingseach such fiscal quarter (or such later date as maybe be permitted for the filing of the Company’s Quarterly report on Form 10-Q for the applicable fiscal quarter, but in no event later than 75 days after the end of each such fiscal quarter of each Fiscal Year of the Company), a consolidated balance sheet of Holdings the Company and its Subsidiaries as of at the end of such fiscal quarter and quarter, the related consolidated statements of income or operations for such fiscal quarter and cash flows for the portion of Holdings the Company’s Fiscal Year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, all in reasonable detail, certified by the chief executive officer, chief financial officer, chief accounting officer, treasurer or controller of the Company as fairly presenting, in all material respects, the financial condition and results of operations, of the Company and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of Holdings as having been prepared in accordance with GAAP (GAAP, subject only to normal year-end audit adjustments and the absence of footnotes) , together with related notes thereto and management’s discussion and analysis describing results of operations in the form customarily prepared by management of the Company; provided that the foregoing financial statements are accompanied by a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer reconciliation that explains or controller of Holdings) otherwise shows in reasonable detail as the differences between the information relating to compliance during the Company and at its Subsidiaries, on the end of the applicable accounting periods with the restrictions contained in Section 7.09one hand, and in the event of any change in GAAP used in information relating to the preparation of such Company and its Restricted Subsidiaries on a standalone basis, on the other hand and are accompanied by consolidating financial statements, Section 1.03(b) shall apply.statements that segregate out the Borrower; and
(b) as soon as available and in concurrently with the delivery of any event within 90 days after the end of each fiscal year of Holdings, a copy of the annual audit report for such year for Holdings and its Subsidiaries, containing the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal year and consolidated financial statements of income and cash flows of Holdings and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants of recognized national standing (that does not include any “going concern” or similar qualification, or any qualification as pursuant to the scope of their auditSections 5.1(a)(i) and 5.1(a)(ii), a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end a Responsible Officer of the applicable accounting periods with Borrower that shall include, or have appended thereto, (x) a statement that such Responsible Officer of the restrictions contained in Section 7.09, and in the event Borrower has obtained no knowledge of any change in GAAP used in continuing Event of Default, or if any such Event of Default has occurred and is continuing, specifying the preparation nature and extent thereof and any action taken or proposed to be taken with respect thereto and (y) which shall include calculations with respect to the Consolidated Fixed Charge Coverage Ratio to the extent (i) a Covenant Trigger Event exists or (ii) Excess Availability is less than 15% of such financial statements, Section 1.03(bthe Line Cap (without giving effect to any increase thereof during an Agent Advance Period) shall apply;for purposes of “reporting” the Consolidated Fixed Charge Coverage Ratio.
(c) from and after the Closing Date, (i) unless clause (ii) below applies, not later than 5:00 p.m., New York City time on or before the twentieth (20th) day of each Fiscal Month (or, with respect to the first two Fiscal Months following the Closing Date, the thirtieth (30th) day of each such Fiscal Month) or more frequently as soon the Borrower may elect, so long as possible the frequency of delivery is maintained by the Borrower for the immediately following one hundred twenty (120) day period, and (ii) during any period in which a (A) Liquidity Condition is in effect and in respect of which the Administrative Agent has delivered notice thereof as contemplated by the definition thereof or (B) Event of Default has occurred, not later than 5:00 p.m., New York City time, on or before Wednesday of each week, in each case, a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit I and including adjustments to reflect the LILO Borrowing Base to the extent any event within five days upon any LILO Loans are outstanding hereunder at the time the applicable certificate is delivered and signed by a Responsible Officer of Holdings obtaining actual knowledge the Borrower or the Company (each, a “Borrowing Base Certificate”), which shall be prepared as of the occurrence of any Default continuing on the date of such statement, a statement last Business Day of the chief financial officer preceding Fiscal Month in the case of Holdings setting forth details each subsequent Borrowing Base Certificate (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week or other applicable period preceding such Default and delivery). Each such Borrowing Base Certificate shall include such supporting information as may be reasonably requested from time to time by the action that Holdings and the Borrowers have taken and proposes to take with respect theretoAdministrative Agent;
(d) promptly after the sending or filing thereof, copies of all reports Holdings sends to its securityholders generally, and copies of all reports on Form 10-K, 10-Q or 8-K (other than pursuant to Rule 14a-12 of the Securities Exchange Act of 1934, as amended) and registration statements for the public offering (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files with the SEC or any national securities exchange;
(e) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of the type described in clause (i) or (ii) of Section 5.06; and
(f) promptly after the occurrence thereof, of any material change in accounting policies or financial reporting practices by Holdings or any Subsidiary; and
(g) promptly after any written request therefor, such other information with respect to Holdings or any of its Material Subsidiaries as by any Lender, through customary documentation and other information that such Lender reasonably requests in writing in order to comply with its ongoing obligations under applicable “know your customer” and Anti-Money Laundering Laws, including the Administrative Agent, may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in clauses (a) and (b) above at the times specified therein. Documents required to be delivered pursuant to Section 6.09(a), (b) and (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address xxx.xxx.xxx or another website address provided by Holdings in a written notice to the Administrative Agent; (ii) on which such documents are posted on a publicly available website maintained by or on behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), or (iii) on which such documents are posted on behalf of Holdings on an Internet or intranet website, if any, to which each Lender PATRIOT Act and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Beneficial Ownership Regulation; provided that: (i) Holdings shall deliver paper copies of such documents to the Administrative Agent, for delivery by the Administrative Agent to any Lender that requests Holdings to deliver such paper copies, until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (ii) except with respect to documents posted on the XXXXX Website, Holdings shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. Holdings and each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby 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,” Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, any Borrower or any of their securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” 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 Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Other Information. Deliver The Borrower will furnish or cause to be furnished to the Administrative Agent (for delivery to each Lender), in form and detail reasonably satisfactory Bank with regard to the Administrative AgentBorrower, Marketing, Properties and Realty, as the case may be:
(a) as soon as available and but in any event within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each in any fiscal year of HoldingsRealty and Marketing, the unaudited consolidated balance sheet of Holdings sheets for Realty and its Subsidiaries (including the Borrower) and for Marketing as of at the end of such fiscal quarter quarter, and the related unaudited consolidated statements of income and cash flows summaries of Holdings changes in financial position for Realty and its Subsidiaries subsidiaries (including the Borrower) and for Marketing for the period commencing at with the end of the previous preceding fiscal year and ending with the end of such quarter, duly prepared in accordance with generally accepted accounting principles consistently applied, in each case the financial statements for Realty and its Subsidiaries (including the Borrower) shall be certified (subject to year-end audit adjustments) by the chief financial officer of Holdings as having been prepared in accordance with GAAP (subject Realty, subject, however to normal audit and year-end audit adjustments and the absence of footnotes) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply.adjustments;
(b) as soon as available and but in any event within 90 ninety (90) days after the end of each fiscal year of HoldingsRealty and Marketing, a copy of the annual audit report for such year for Holdings and its Subsidiaries, containing the audited consolidated balance sheet of Holdings sheets for Realty and its Subsidiaries (including the Borrower) and for Marketing as of at the end of such fiscal year and audited consolidated statements of income and cash flows summaries of Holdings changes in financial position for Realty and its Subsidiaries (including the Borrower) and for Marketing for such fiscal year, prepared in accordance with generally accepted accounting principles consistently applied, in each case accompanied by an the opinion of and report by KPMG LLP or Coopers & Lybrxxx xx other independent certified public accountants of nationally recognized national standing (that does not include any “going concern” selected by Realty or similar qualificationMarketing, or any qualification as the case may be, and acceptable to the Bank, such opinion to be unqualified as to the scope of their audit) limitations imposed by Realty or Marketing and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail otherwise without qualification except as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall applytherein noted;
(c) to the extent available, if at all, as soon as possible and available but in any event within one hundred eighty (180) days after the end of each fiscal year of Realty or Marketing, any CPA management letters prepared for Realty or any of its Subsidiaries (including the Borrower) relating to the annual audit;
(d) as soon as available but in any event within forty-five (45) days upon any Responsible Officer after the end of Holdings obtaining actual knowledge each fiscal quarter of Realty and ninety (90) days after the occurrence end of any Default continuing on the date each fiscal year of such statementRealty, a statement from the Borrower of the Funded Debt to EBITDA Ratio as of the end of the most recent fiscal quarter of Realty and Marketing, together with a certificate of the chief financial officer of Holdings setting forth details of the Borrower stating that such Default statement fairly and accurately reflects the action that Holdings and the Borrowers have taken and proposes Funded Debt to take with respect thereto;
(d) promptly after the sending or filing thereof, copies of all reports Holdings sends to its securityholders generally, and copies of all reports on Form 10-K, 10-Q or 8-K (other than pursuant to Rule 14a-12 EBITDA Ratio as of the Securities Exchange Act end of 1934, as amended) the most recent fiscal quarter of Realty and registration statements for the public offering (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files is prepared in accordance with the SEC or any national securities exchange;generally accepted accounting principles consistently applied; and
(e) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of the type described in clause (i) or (ii) of Section 5.06; and
(f) promptly after the occurrence thereof, of any material change in accounting policies or financial reporting practices by Holdings or any Subsidiary; and
(g) promptly after any written request thereforwith reasonable promptness, such other information with respect relating to Holdings the business or any financial affairs of its Material Subsidiaries the Borrower, Marketing, Properties or Realty as any Lender, through the Administrative Agent, Bank may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in clauses (a) and (b) above at the times specified therein. Documents required to be delivered pursuant to Section 6.09(a), (b) and (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address xxx.xxx.xxx or another website address provided by Holdings in a written notice to the Administrative Agent; (ii) on which such documents are posted on a publicly available website maintained by or on behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), or (iii) on which such documents are posted on behalf of Holdings on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Holdings shall deliver paper copies of such documents to the Administrative Agent, for delivery by the Administrative Agent to any Lender that requests Holdings to deliver such paper copies, until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (ii) except with respect to documents posted on the XXXXX Website, Holdings shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. Holdings and each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby 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,” Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, any Borrower or any of their securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” 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 Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Other Information. Deliver The Guarantor will furnish to the Administrative Agent (for delivery to each Lender), in form and detail reasonably satisfactory to the Administrative AgentBank:
(a) as soon as available and but in any event within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each in any fiscal year of Holdingsthe Guarantor, the an unaudited consolidated balance sheet of Holdings for the Guarantor and its Subsidiaries as of at the end of such fiscal quarter quarter, and the related an unaudited consolidated statements statement of income and cash flows statement of Holdings changes in financial position for the Guarantor and its Subsidiaries for the period commencing at with the end of the previous preceding fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by together with a certificate of the chief financial officer of Holdings the Guarantor stating that such financial statements fairly present the financial condition of the Guarantor and its Subsidiaries as having of the date thereof and have been prepared in accordance with GAAP (subject generally accepted accounting principles consistently applied, subject, however, to normal audit and year-end audit adjustments and the absence of footnotes) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply.adjustments;
(b) as soon as available and but in any event within 90 ninety (90) days after the end of each fiscal year of Holdingsyear, a copy of the annual audit report for such year for Holdings and its Subsidiaries, containing the an audited consolidated balance sheet of Holdings for the Guarantor and its Subsidiaries as of at the end of such fiscal year year, and an audited consolidated statements statement of income and cash flows statement of Holdings changes in financial position for the Guarantor and its Subsidiaries for such fiscal year, prepared in accordance with generally accepted accounting principles consistently applied, in each case accompanied by an the opinion of and report by KPMG PricewaterhouseCoopers LLP or other independent certified public accountants of nationally recognized national standing (that does not include any “going concern” or similar qualificationselected by the Guarantor and acceptable to the Bank, or any qualification such opinion to be unqualified as to the scope of their audit) and a Compliance Certificate (signed limitations imposed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09Guarantor, and in the event of any change in GAAP used in the preparation of such financial statementsotherwise, Section 1.03(b) shall applywithout qualification except as therein noted;
(c) as soon as possible and in any event within five days upon any Responsible Officer accompanying each set of Holdings obtaining actual knowledge financial statements of the occurrence Guarantor furnished pursuant to paragraph (a) or (b) above, an Officer's Certificate stating that a review of any Default continuing the activities of the Guarantor and the Borrower during the period covered by such financial statements has been made under the supervision of the signer with a view to determining whether, during such period, each of the Guarantor and the Borrower has kept, observed, performed and fulfilled each and every covenant and condition of each of the Loan Documents to which it is a party and either (i) stating that, to the best of his knowledge and belief, there neither exists on the date of such statementcertificate, nor existed during such period, any default under any existing loan or credit agreement to which the Guarantor or the Borrower is a statement party, or (ii) if any such default under any existing loan or credit agreement to which the Guarantor or the Borrower is a party existed or exists, specifying the nature thereof, the period of existence thereof and what action the chief financial officer of Holdings setting forth details of such Default and Guarantor or the action that Holdings and the Borrowers have taken and Borrower, as appropriate, has taken, is taking or proposes to take with respect thereto;
(d) promptly after accompanying each set of financial statements of the sending Guarantor set forth in paragraph (b) above, a certificate of the accounting firm stating that they have read a copy of this Guaranty and that, in the course of their regular audit of the business of the Guarantor, which was conducted in accordance with generally accepted auditing standards, nothing has come to their attention that caused them to believe that any default under any existing loan or credit agreement to which the Guarantor or the Borrower is a party has occurred during the fiscal year in question or exists at the date of such certificate or, if in the opinion of such firm a default under any existing loan or credit agreement to which the Guarantor or the Borrower is a party has so existed or exists, a statement as to the nature thereof;
(e) contemporaneously with the filing or mailing thereof, copies of all such other financial statements or reports Holdings sends as the Guarantor shall send to its securityholders generallystockholders, and copies of all regular, and periodic and other reports which the Guarantor may be required to file with the Securities and Exchange Commission or any other governmental commission, department, board, bureau or agency, federal or state (including without limitation all reports on Form Forms 10-K, 10-Q or and 8-K (other than pursuant to Rule 14a-12 of the Securities Exchange Act of 1934, as amended) and registration statements for the public offering (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files with the SEC or any national securities exchange;
(e) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of the type described in clause (i) or (ii) of Section 5.06K); and
(f) promptly after the occurrence thereof, of any material change in accounting policies or financial reporting practices by Holdings or any Subsidiary; and
(g) promptly after any written request thereforwith reasonable promptness, such other information with respect relating to Holdings the business or any financial affairs of its Material Subsidiaries the Guarantor as any Lender, through the Administrative Agent, Bank may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in clauses (a) and (b) above at the times specified therein. Documents required to be delivered pursuant to Section 6.09(a), (b) and (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address xxx.xxx.xxx or another website address provided by Holdings in a written notice to the Administrative Agent; (ii) on which such documents are posted on a publicly available website maintained by or on behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), or (iii) on which such documents are posted on behalf of Holdings on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Holdings shall deliver paper copies of such documents to the Administrative Agent, for delivery by the Administrative Agent to any Lender that requests Holdings to deliver such paper copies, until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (ii) except with respect to documents posted on the XXXXX Website, Holdings shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. Holdings and each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby 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,” Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, any Borrower or any of their securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” 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 Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Other Information. Deliver to the Administrative Agent (for delivery to each Lender), in form and detail reasonably satisfactory to the Administrative Agent:
(a) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings, the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal quarter and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of Holdings as having been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply.
(b) as soon as available and in any event within 90 days after the end of each fiscal year of Holdings, a copy of the annual audit report for such year for Holdings and its Subsidiaries, containing the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and cash flows of Holdings and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants of recognized national standing (that does not include any “going concern” or similar qualification, or any qualification as to the scope of their audit) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply;
(c) as soon as possible and in any event within five days upon any Responsible Officer of Holdings obtaining actual knowledge of the occurrence of any Default continuing on the date of such statement, a statement of the chief financial officer of Holdings setting forth details of such Default and the action that Holdings and the Borrowers have taken and proposes to take with respect thereto;
(d) promptly after the sending or filing thereof, copies of all reports Holdings sends to its securityholders generally, and copies of all reports on Form 10-K, 10-Q or 8-K (other than pursuant to Rule 14a-12 of the Securities Exchange Act of 1934, as amended) and registration statements for the public offering (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files with the SEC or any national securities exchange;
(e) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of the type described in clause (i) or (ii) of Section 5.06; and;
(f) promptly after the occurrence thereof, notice of any material change in accounting policies or financial reporting practices by Holdings or any Subsidiary;
(g) following and during the continuance of a Suspension Period, notice of the occurrence of any Reversion Event promptly after the occurrence thereof;
(h) promptly after the occurrence thereof, notice of any ERISA Event or the termination of any Foreign Pension Plan that could reasonably be expected to result in any potential material liability to Holdings or any Subsidiary, taken as a whole; and
(gi) promptly after any written request therefor, such other information with respect to Holdings or any of its Material Subsidiaries as any Lender, through the Administrative Agent, may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in clauses (a) and (b) above at the times specified therein. Documents required to be delivered pursuant to Section 6.09(a), (b) and (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’ website on the Internet at the website address xxx.xxx.xxx or another website address provided by Holdings in a written notice to the Administrative Agent; , (ii) on which such documents are posted on a publicly available website maintained by or on behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), ) or (iii) on which such documents are posted on behalf of Holdings on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Holdings shall deliver paper copies of such documents to the Administrative Agent, for delivery by the Administrative Agent to any Lender that requests Holdings to deliver such paper copies, until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (ii) except with respect to documents posted on the XXXXX Website, Holdings shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. Holdings and each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby 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,” Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Bookrunners, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, any Borrower or any of their securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” 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 Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Other Information. Deliver to the Administrative Agent (for delivery to and each Lender), in form and detail reasonably satisfactory to the Administrative AgentAgent and the Required Lenders:
(ai) For the fiscal quarter of the Borrower ending June 30, 2008, as soon as available and in any event within 45 120 days after the end of each of such fiscal quarter, (ii) for the fiscal quarter of the Borrower ending September 30, 2008, as soon as available and in any event within 75 days after the end of each of such fiscal quarter, and (iii) beginning with the fiscal quarter of the Borrower ending March 31, 2009, as soon as available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Holdingsthe Borrower: (A) consolidated statements of operations of the Parent Guarantor, the Borrower and the Restricted Subsidiaries, taken together, for such quarter and for the period from the beginning of such fiscal year to the end of such quarter and (B) the related consolidated balance sheet sheets and consolidated cash flow statements of Holdings the Parent Guarantor, the Borrower and its Subsidiaries the Restricted Subsidiaries, taken together, as at the end of such quarter (which financial statements (other than statements of cash flows), beginning with the fiscal quarter of the Borrower ending December 31, 2009, shall set forth in comparative form the corresponding figures as at the end of and for the corresponding quarter in the preceding fiscal year) all in reasonable detail and accompanied by (x) a certificate in the form of Exhibit D-1 hereto of a senior financial executive of the Parent Guarantor, certifying such financial statements as fairly presenting the financial condition and results of operations of the respective entities covered thereby in accordance with GAAP, excluding accompanying footnotes to the consolidated financial statements and subject, however, to year-end and audit adjustments, which certificate shall include a statement that the senior financial executive signing the same has no knowledge, except as specifically stated, that any Event of Default has occurred and is continuing and (y) management’s discussion and analysis of results of operations for the period covered thereby; provided, that for the fiscal quarters ended June 30, 2008 and September 30, 2008, the references to “the Borrower” in this clause (a) shall be deemed to be references to the Business.
(b) As soon as available and in any event within 120 days after the end of each fiscal year of the Borrower: (A) consolidated audited statements of operations of the Parent Guarantor, the Borrower and the Restricted Subsidiaries, taken together, for such fiscal year and (B) the related consolidated balance sheets and cash flow statements of the Parent Guarantor, the Borrower and the Restricted Subsidiaries, taken together, as at the end of such fiscal year (which financial statements (other than cash flow statements) shall, beginning with the fiscal quarter and of the related consolidated statements of income and cash flows of Holdings and its Subsidiaries for Borrower ending December 31, 2009, set forth in comparative form the period commencing corresponding figures as at the end of and for the previous preceding fiscal year year), all in reasonable detail and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer of Holdings as having been prepared in accordance with GAAP and accompanied by (subject x) an opinion of a Registered Public Accounting Firm of nationally recognized standing selected by the Borrower and reasonably acceptable to normal year-end audit adjustments the Required Lenders as to said consolidated financial statements of the Parent Guarantor, the Borrower and the absence Restricted Subsidiaries and a certificate of footnotessuch accountants stating that, in making the examination necessary for said opinion, they obtained no knowledge, except as specifically stated, of any failure by the Parent Guarantor, the Borrower or any Restricted Subsidiaries to perform or observe any of its covenants relating to financial matters in this Agreement, (y) a certificate in the form of Exhibit D-2 hereto of a senior financial executive of the Borrower stating that such financial statements are correct and complete and fairly present the financial condition and results of operations of the respective entities covered thereby as at the end of and for such fiscal year and that the executive signing the same has no knowledge, except as specifically stated, that any Event of Default has occurred and is continuing and (z) management’s discussion and analysis of results of operations for the period covered thereby.
(c) Promptly after their becoming available, copies of financial statements and reports which CSC Holdings shall have sent to the holders of notes under the CSC Holdings Indenture or which the Parent Guarantor shall have received as a holder of the Cablevision Notes, and to the calculation of financial ratios thereunder and copies of all regular and periodic reports, if any, which the Borrower or any Restricted Subsidiary shall have filed with the SEC, or any governmental agency substituted therefor, or with any national securities exchange.
(d) Beginning with the fiscal quarter of the Borrower ending December 31, 2008, concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b), a Compliance Certificate (from the Borrower, duly completed signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall applyBorrower.
(be) as As soon as available practicable and in any event within 90 ten days after the end of each fiscal year of Holdings, a copy any senior executive of the annual audit report for such year for Holdings and its Subsidiaries, containing the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and cash flows of Holdings and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants of recognized national standing (that does not include any “going concern” or similar qualification, Borrower or any qualification as to the scope of their audit) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer Restricted Subsidiary or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation general partner of such financial statements, Section 1.03(b) any Restricted Subsidiary shall apply;
(c) as soon as possible and in any event within five days upon any Responsible Officer of Holdings obtaining actual have obtained knowledge of the occurrence of any Default continuing on the date of such statementa Default, a statement of the chief financial officer of Holdings setting forth details of describing such Default and the action that Holdings and the Borrowers have which is proposed to be taken and proposes to take with respect thereto;
(d) promptly after the sending or filing thereof, copies of all reports Holdings sends to its securityholders generally, and copies of all reports on Form 10-K, 10-Q or 8-K (other than pursuant to Rule 14a-12 of the Securities Exchange Act of 1934, as amended) and registration statements for the public offering (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files with the SEC or any national securities exchange;
(e) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of the type described in clause (i) or (ii) of Section 5.06; and.
(f) promptly after the occurrence thereofFrom time to time, of any material change in accounting policies or financial reporting practices by Holdings or any Subsidiary; and
(g) promptly after any written request thereforwith reasonable promptness, such other further information with respect to Holdings regarding the business, affairs and financial condition of the Borrower or any of its Material the Restricted Subsidiaries or any of their respective Affiliates or other affiliates as the Administrative Agent or any Lender, through the Administrative Agent, may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause .
(ag) or (b) above, but Concurrently with the foregoing shall not be in derogation delivery of the obligation of Holdings financial statements referred to furnish the information and materials described in clauses (aSection 6.01(a) and (b) above at the times specified therein), a list of any new, or redesignation with respect to, Restricted Subsidiaries and Unrestricted Subsidiaries. Documents required to be delivered pursuant to Section 6.09(a6.01(a), (b) and or (dc) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower, CSC Holdings or Cablevision posts such documents, or provides a link thereto on Holdings’ the website on the Internet at the website address xxx.xxx.xxx listed on Schedule 12.02; or another website address provided by Holdings in a written notice to the Administrative Agent; (ii) on which such documents are posted on a publicly available website maintained by or on the Borrower’s behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), or (iii) on which such documents are posted on behalf of Holdings on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iA) Holdings the Borrower shall deliver paper copies of such documents to the Administrative Agent, for delivery by the Administrative Agent to or any Lender that requests Holdings the Borrower to deliver such paper copies, copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (iiB) except with respect to documents posted on the XXXXX Website, Holdings Borrower shall notify the Administrative Agent Agent, each Lender (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificate required by Section 6.01(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it (through the Administrative Agent) or maintaining its copies of such documents. Holdings and each The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger Joint Lead Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (eachi.e., a “Public Lender”) may have personnel who Lenders that do not wish to receive material non-public information with respect to Holdings the Borrower or its Affiliatessecurities) (each, or the respective securities of any a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the foregoing, and who Borrower Materials not otherwise publicly filed with the SEC that may be engaged in investment distributed to the Public Lenders and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby agree that (w) all such 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,” Holdings and the Borrowers Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer Joint Lead Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Holdings, any the Borrower or any of their its securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07)laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” Investor”; and (z) the Administrative Agent and the Arranger Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLICInvestor.”
Appears in 1 contract
Samples: Credit Agreement (CSC Holdings Inc)
Financial Statements, Certificates and Other Information. Deliver Deliver, or cause the Company to deliver, to the Administrative Agent (for delivery prompt further distribution to each Lender), in form and detail reasonably satisfactory to Lender each of the Administrative Agentfinancial statements:
(a) (i) within 120 days after the end of each Fiscal Year of the Company, Intermediate SPV and the Borrower, commencing with the Fiscal Year ending December 31, 2024, (x) the Company’s audited consolidated balance sheet and related statements of operations, cash flows and changes in common stock as soon of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte & Touche LLP or other independent registered public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as available to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company, and its Subsidiaries on a consolidated basis in any event accordance with GAAP consistently applied, and (y) the internally prepared standalone balance sheet and related statements of operations and cash flows of Intermediate SPV and the Borrower, as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all certified by a Responsible Officer of the Company to the effect that such standalone financial statements present fairly in all material respects the financial condition and results of operations of Intermediate SPV and the Borrower; (ii) within 45 60 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year Fiscal Year of Holdingsthe Company, Intermediate SPV and the Borrower, commencing with the first such full Fiscal Quarter ending after the Closing Date, (x) the Company’s consolidated balance sheet and related statements of Holdings operations, cash flows and its Subsidiaries changes in common stock as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, and (y) the internally prepared standalone balance sheet and related consolidated statements of income operations and cash flows of Holdings Intermediate SPV and its Subsidiaries for the period commencing at Borrower, as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year Fiscal Year, and ending with (iii) at any time a Covenant Trigger Event is in effect, within 30 days after the end of each Fiscal Month of the Company, Intermediate SPV and the Borrower, commencing with the first such quarterfull Fiscal Month ending after the occurrence of such Covenant Trigger Event until the first full Fiscal Month immediately preceding that in which such Covenant Trigger Event is cured or ceases to exist, duly the Company’s internally prepared standalone balance sheet and related statements of operations as of the end of and for such Fiscal Month and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, and cash flow statement line items reasonably necessary to calculate the Consolidated Fixed Charge Coverage Ratio for the relevant Test Period; in the case of the foregoing clauses (ii) and (iii), all certified (subject to year-end audit adjustments) by a Responsible Officer of the chief Company, Intermediate SPV or the Borrower, as applicable, as presenting fairly in all material respects the financial officer condition and results of Holdings operations of the Company, Intermediate SPV or the Borrower, as having been prepared applicable, and their respective consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes) and a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7.09, and in the event of any change in GAAP used in the preparation of such financial statements, Section 1.03(b) shall apply.; US-DOCS\148017393.28
(b) as soon as available and in concurrently with the delivery of any event within 90 days after the end of each fiscal year of Holdings, a copy of the annual audit report for such year for Holdings and its Subsidiaries, containing the consolidated balance sheet of Holdings and its Subsidiaries as of the end of such fiscal year and consolidated financial statements of income and cash flows of Holdings and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by KPMG LLP or other independent public accountants of recognized national standing (that does not include any “going concern” or similar qualification, or any qualification as pursuant to the scope of their auditSections 5.1(a)(i) and 5.1(a)(ii), a Compliance Certificate (signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings) in reasonable detail as to compliance during and at the end a Responsible Officer of the applicable accounting periods with Borrower that shall include, or have appended thereto, a statement that such Responsible Officer of the restrictions contained in Section 7.09, and in the event Borrower has obtained no knowledge of any change in GAAP used in continuing Event of Default, or if any such Event of Default has occurred and is continuing, specifying the preparation nature and extent thereof and any action taken or proposed to be taken with respect thereto (which shall include calculations with respect to the Financial Covenant irrespective of whether a Covenant Trigger Event exists at such financial statements, Section 1.03(b) shall applytime);
(c) from and after the Effective Date, (i) unless clause (ii) below applies, not later than 5:00 p.m. (New York City time) on or before the 20th day of each Fiscal Month or more frequently as soon the Borrower may elect, so long as possible the frequency of delivery is maintained by the Borrower for the immediately following sixty (60) day period, and (ii) during any period in which (w) a Dominion Period is in effect and in respect of which the Administrative Agent has delivered notice thereof, or (x) at any event within five days upon time Aggregate Excess Availability is equal to or less than $125,000,000, (y) at any Responsible Officer time Residential Excess Availability is equal to or less than $32,500,000 or (z) at any time Non-Residential Excess Availability is equal to or less than $92,500,000 not later than 5:00 p.m. (New York City time) on or before Wednesday of Holdings obtaining actual knowledge each week, in each case, a borrowing base certificate setting forth the Non-Residential Borrowing Base and the Residential Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit I (each, a “Borrowing Base Certificate”), which shall be prepared as of the occurrence of any Default continuing on the date of such statement, a statement last Business Day of the chief financial officer preceding Fiscal Month in the case of Holdings setting forth details each subsequent Borrowing Base Certificate (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week or other applicable period preceding such Default and delivery). Each such Borrowing Base Certificate shall include such supporting information as may be reasonably requested from time to time by the action that Holdings and the Borrowers have taken and proposes to take with respect theretoAdministrative Agent;
(d) promptly one time during each Fiscal Year of the Company (or two times during the next 12 Fiscal Months of the Company after the sending date (i) the Aggregate Excess Availability is less than the greater of 15% of the Line Cap and $31,250,000 for five consecutive Business Days, (ii) the Non-Residential Excess Availability is less than the greater of 15% of the Non-Residential Line Cap and $23,125,000 for five consecutive Business Days, or filing (iii) the Residential Excess Availability is less than the greater of 15% of the Residential Line Cap and $8,125,000 for five consecutive Business Days) and at any time that any Event of Default exists, as often as the Administrative Agent reasonably requests, a collateral examination of the Accounts, Related Rights and Related Security of the Borrower and the Company, in each case, in scope and form, and conducted by the Administrative Agent or from a third-party appraiser and a third-party consultant, respectively, reasonably satisfactory to the Administrative Agent and at the sole cost and expense of the Borrower; provided that the Administrative Agent shall determine the scope of the collateral examination in consultation with the Co-Collateral Agent. The collateral examinations described herein shall be carried out by the Administrative Agent at the request of any Lender, subject to the limitations and conditions set forth in this clause (d). The Co-Collateral Agent shall have the right to participate with the Administrative Agent in the initial review of findings of any such collateral examination, prior to discussion with the Borrower or the Company. The Administrative Agent shall deliver to each Agent and Lender, within five Business Days of receipt thereof, copies of all reports Holdings sends each final report delivered to its securityholders generally, and copies of all reports on Form 10-K, 10-Q or 8-K (other than the Administrative Agent pursuant to Rule 14a-12 of the Securities Exchange Act of 1934, as amended) and registration statements for the public offering this clause (other than pursuant to employee Plans) of securities of Holdings that Holdings or any Subsidiary files with the SEC or any national securities exchanged);
(e) promptly after the commencement thereofwritten request by any Lender, notice of all actions customary documentation and proceedings before any courtother information that such Lender reasonably requests in writing in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, Governmental Authority or arbitrator affecting Holdings or any of its Material Subsidiaries of including the type described in clause (i) or (ii) of Section 5.06; andPATRIOT Act and the Beneficial Ownership Regulation;
(f) promptly after (i) on each Business Day during any Dominion Period, not later than 12:00 p.m. (noon) (Hawaii Standard Time), an account of all payments and collections received by the occurrence thereofBorrower during the US-DOCS\148017393.28 prior Business Day in respect of Accounts, identifying whether each such payment or collection results from Residential Accounts or Non-Residential Accounts, and (ii) on the first Business Day of each week during any material change in accounting policies Dominion Period, not later than 5:00 p.m. (Hawaii Standard Time), a detailed account or financial reporting practices by Holdings registry of all payments and collections received during the prior week, identifying whether each such payment or any Subsidiarycollection results from Eligible Residential Accounts or Eligible Non-Residential Accounts; and
(g) promptly after any written request thereforpromptly, such additional financial and other information regarding the business, legal, financial or corporate affairs of the Borrower or the Company or compliance with respect to Holdings the terms of the Loan Documents, as the Administrative Agent or any of its Material Subsidiaries as any Lender, Lender through the Administrative Agent, Agent may from time to time reasonably request. As to any information contained in materials furnished pursuant to Section 6.09(d), Holdings shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in clauses (a) and (b) above at the times specified therein. Documents required to be delivered pursuant to Section 6.09(a), (b) and (d5.1(a) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and Electronically and, if so delivered, shall be deemed to have been delivered by the Borrower on the date (i) on which Holdings posts such documents, materials are publicly available as posted on XXXXX; or provides a link thereto on Holdings’ website on the Internet at the website address xxx.xxx.xxx or another website address provided by Holdings in a written notice to the Administrative Agent; (ii) on which such documents are posted on a publicly available website maintained by or on the Company’s behalf of the SEC for access to documents filed in the XXXXX database (the “XXXXX Website”), or (iii) on which such documents are posted on behalf of Holdings 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 made available by the Administrative Agent); provided that: (i) Holdings shall deliver paper copies of such documents to that the Administrative Agent, for delivery by the Administrative Agent to any Lender that requests Holdings to deliver such paper copies, until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender (through the Administrative Agent) and (ii) except with respect to documents posted on the XXXXX Website, Holdings Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and, if requested by the Administrative Agent, and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Loan Party the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such document to it (through the Administrative Agent) or and maintaining its copies of such documents. Holdings and each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or a 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 (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and each Borrower hereby 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,” Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, any Borrower or any of their securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” 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 Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
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