Financial Statements, Certificates and Information. (a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower at the end of such year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries; (b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements of income and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period; (d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit); (e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower; (f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change; (g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent); (h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties; (i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years; (j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and (k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 3 contracts
Sources: Credit Agreement (Epr Properties), Credit Agreement (Epr Properties), Credit Agreement (Epr Properties)
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 one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K ability of the Borrower filed or any of its Subsidiaries to continue as going concerns, by KPMG Peat Marwick or by other independent certified public accountants satisfactory to the Administrative Agent, together with a written statement from such accountants to the SEC; providedeffect that they have read §§9 and 10 of this Credit Agreement and all the definitions associated therewith, howeverand that, that in making the examination necessary to said certification, they have obtained no event knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any reference to any prior 10-Ks then existing Default or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor Event of Default they shall disclose in such statement any such information contained in Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis Default or Event of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) as soon as practicable, but in any event within forty-five (45) days after the end of each month in each fiscal year of the Borrower, an unaudited monthly consolidated balance sheet and consolidated statement of income of the Borrower and its Subsidiaries for such month 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 condition of the Borrower and its Subsidiaries on the date thereof (subject to year-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 Borrower in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after within forty-five days (45) days of the end of each calendar month and, in any case, simultaneously with the delivery of a Rating Agency shall have announced Loan Request in accordance with §2.9, and at the times specified in §9.5.2 and at such other times as the Administrative Agent may reasonably request, a change in Borrowing Base Report setting forth the rating established or deemed to have been established for Borrowing Base as at the Index Debt, written notice end of such rating changecalendar month, the date of such Loan Request or other date so requested by the Administrative Agent, as the case may be;
(g) promptly upon simultaneously with the filing hereofdelivery of the financial statements referred to in subsection (b) above and at such other times as the Administrative Agent may reasonably request, copies a summary Accounts Receivable (including Eligible Container Receivables) aging report as of all registration statements the end of each fiscal quarter of the Borrower, together with a list of account debtors and the associated Accounts Receivable with the largest overdue face amounts as of the end of each fiscal quarter, and otherwise in form and detail satisfactory to the Administrative Agent, together with a list of the twenty (other than 20) account debtors with whom the exhibits thereto and any registration statements on Form S-8 or its equivalent)Borrower transacted the largest volume of business during such fiscal quarter;
(h) upon reasonable as soon as practicable, but in any event not later than 45 days after request by the AgentAdministrative Agent made after determining in its discretion that an appraisal or reappraisal of the value of Eligible Containers of the Borrower or any Subsidiary of the Borrower is necessary, evidence reasonably an appraisal or reappraisal, as the case may be, of the value of such Eligible Containers, which appraisal or reappraisal shall be conducted at the expense of the Borrower or such Subsidiary by an appraiser selected by the Administrative Agent in form and substance satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesAdministrative Agent;
(i) not later than November 15 simultaneously with the delivery of each the financial statements referred to in subsection (a) above and from time to time upon request of the Administrative Agent, a copy of the Borrower’s business plan, budget and financial forecast prepared on a monthly or quarterly basis for the then current fiscal year, all in such form and detail as the Consolidated cash flow Lenders may reasonably request, updating those projections of delivered to the Borrower for the next three yearsLenders and referred to in §7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this §8.4(i);
(j) simultaneously with the delivery of the financial statements referred to in subsection (c) above, a report listing the aggregate number of Containers owned, rented, leased or managed by the Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers in form and detail satisfactory to the Agent;
(k) from time to time such other financial data and information in (including accountants’ management letters) as the possession Administrative Agent or any Lender may reasonably request; and
(l) simultaneously with the delivery thereof to Interpool or other holder of Subordinated Debt, copies of any notices with respect to the Subordinated Debt delivered from time to time to Interpool or such other holder pursuant to the relevant Subordination Documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders 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 Subsidiaries securities) (including without limitation auditors’ management letterseach, status a “Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of litigation any outstanding debt or investigations against 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 shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer, the Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its Subsidiaries securities for purposes of United States Federal and any settlement discussions relating theretostate securities laws (provided, property inspection however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and environmental reports and information as to zoning and other legal and regulatory changes affecting (z) the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Administrative Agent and the Lenders receive 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 same level of disclosure from Platform not designated “Public Investor.” Notwithstanding the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (foregoing or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2contained herein, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 the Borrower shall be deemed delivered under no obligation to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the ▇▇▇▇ any Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrowers will deliver to the Administrative Agent (for posting to the Lenders), the following:
(a) as soon as practicable, but but, in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated balance sheet sheets of the Borrower Parent and its Subsidiaries as at the end of such year, statements of cash flows, and the related audited Consolidated consolidated statements of incomeoperations, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated financial statements to be in reasonable detail, prepared prepared, in accordance with GAAPGAAP and certified by the Accountants, and accompanied by an auditor’s report prepared without which shall not be subject to any “going concern” or similar qualification or exception (other than any such qualification that is based solely on the Indebtedness hereunder becoming current as a result of not having refinanced such Indebtedness prior to the date which is one year before the applicable Maturity Date or Incremental Term Loan Maturity Date therefor) or any qualification or exception as to the scope of the Accountants’ audit if such qualification or exception as to scope is based upon or results from any limitations imposed by a "Big Four" accounting firm the Borrowers or another nationally recognized firm acceptable to any action (or inaction) of the Agent (the foregoing Borrowers with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;applicable audit.
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Parent, copies of the unaudited Consolidated consolidated balance sheet sheets and statement of operations of the Borrower Parent and its Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related unaudited Consolidated statements statement of income and cash flows for the portion of the Borrower’s fiscal year then elapsedflows, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief principal financial or accounting officer of the Borrower Borrowers (the “CFO” or its Vice President – Finance “CAO”) that the information contained in such consolidated financial statements were prepared in accordance with GAAP and fairly presents present in all material respects the consolidated financial position condition of the Borrower Borrowers and its their Subsidiaries as at the close of business on the date thereof (and the results of operations for the period then ended, subject to year-end adjustments)adjustments and the absence of footnotes;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) Certificate certified by the chief financial officer CFO or CAO as of the Borrower or its Vice President – Finance in end of the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) applicable period, setting forth in reasonable detail the computations evidencing compliance required thereby, provided that, if the Borrowers shall at the time of issuance of such certificate or non-compliance (as at any other time obtain knowledge of any Default or Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrowers will include in such certificateCompliance Certificate or otherwise deliver promptly to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, a listing of each Unencumbered Property, the PATRIOT Act and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit)Beneficial Ownership Regulation;
(e) contemporaneously with as soon as practicable, but in any event not later than 30 days after the filing or mailing thereof, copies commencement of all material of a financial nature, reports or proxy statements sent to the shareholders each fiscal year of the Borrower;Parent, a copy of the annual budget, projections and business plan for the Parent and its Subsidiaries for such fiscal year; and
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and other information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status audit reports or recommendations regarding internal controls provided by the Accountants to the board of litigation directors of the Parent, or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariescommittee thereof) as the Agent Lenders may reasonably request. Information concerning The Borrowers hereby authorize the Lenders to disclose any information obtained pursuant to this Agreement to all appropriate Governmental Authorities where required by Applicable Law; provided, however, that the Lenders shall, to the extent practicable and allowable under Applicable Law, notify the Borrowers within a reasonable period prior to the time any such litigation or settlement discussions disclosure is made; and provided further, this authorization shall not include attorneybe deemed to be a waiver of any rights to object to the disclosure by the Lenders of any such information which any Borrower has or may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time. Documents required to be delivered pursuant to this Section (to the extent any such documents are included in materials otherwise filed with the SEC and available in ▇▇▇▇▇) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02; (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-client privileged communicationsparty website or whether sponsored by the Administrative Agent); or (iii) on which such report is filed electronically with the SEC’s ▇▇▇▇▇ system; provided that: the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Notwithstanding anything contained herein, unless the Administrative Agent otherwise agrees, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates required by this Section 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 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 Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall otherwise include not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information which provided by or on behalf of the Borrowers hereunder (collectively, the “Borrowers’ Materials”) by posting the Borrowers’ Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission 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 the Borrowers or their Affiliates, or the respective securities of any of the foregoing and who may be confidential or subject to a workengaged in investment and other market-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower related activities with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reportsPerson’s securities. The Borrowers hereby agree that, if anyreasonably requested by the Administrative Agent, the Borrowers will use commercially reasonable efforts to identify that Borrower portion of the Borrowers’ Materials that may be distributed to Public Lenders and that (w) all Borrowers’ Materials that are to be made available to Public Lenders shall have filed with be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the Commission word “PUBLIC” shall appear prominently on the first page thereof; (or any Governmental Authority substituted thereforx) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with by marking Borrowers’ Materials “PUBLIC,” the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 Borrowers shall be deemed delivered to have authorized the Agent Administrative Agent, the Arrangers, the L/C Issuers and the Lenders if to treat such Form 10Borrowers’ Materials as not containing any material non-K, Form 10-Q, Form 8-K, registration statement or other public information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information although it may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, sensitive and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwiseproprietary) with respect to such Platform the Borrowers or any such information their securities for purposes of Securities Laws (including any information referred to in Section 8.2 below)state securities laws) (provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrowers’ Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrowers’ 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 Arrangers shall be entitled to treat any Borrowers’ Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Side Information.”
Appears in 3 contracts
Sources: Specified Acquisition Loan Joinder (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Banks:
(a) as soon as practicable, but but, in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated and consolidating balance sheet sheets of the Borrower Parent as at the end of such year, statements of cash flows, and the related audited Consolidated consolidated and consolidating statements of income, changes in capital and cash flows for such yearoperations, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAPGAAP and, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied consolidated financial statements, certified by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAccountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the BorrowerBorrowers, copies of the unaudited Consolidated consolidated and consolidating balance sheet sheets and statement of operations of the Borrower Parent as at the end of such quarter, and subject to year end adjustments, the related unaudited Consolidated statements statement of income and cash flows for the portion of the Borrower’s fiscal year then elapsedflows, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; providedGAAP, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief principal financial or accounting officer of each Borrower (the Borrower or its Vice President – Finance “CFO”) that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present the consolidated financial position condition of the Borrower and its Subsidiaries Borrowers as at the close of business on the date thereof (subject to year-end adjustments)) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of Exhibit D hereto (a the “Compliance Certificate”) certified by the chief financial officer CFO that the Borrowers are in compliance with the covenants contained in §§6, 7 and 8 hereof, as of the Borrower or its Vice President – Finance in end of the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) applicable period and setting forth in reasonable detail computations evidencing compliance such compliance, provided that if the Borrowers shall at the time of issuance of such certificate or non-compliance (as at any other time obtain knowledge of any Default or Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrowers shall include in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate certificate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory deliver forthwith to the Agent, together Banks a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodrespect thereto;
(d) contemporaneously with annually or at such other time as may be requested by the delivery Administrative Agent, copies of the financial statements referred statements, financial projections, annual budget and business plan concerning the Borrowers in substantially the same form in which such information is supplied to in clause (a) above, the statement boards of all contingent liabilities involving amounts of $1,000,000.00 or more directors of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit)Borrowers;
(e) contemporaneously with with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective DateBorrowers; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Waste Industries Usa Inc), Revolving Credit Agreement (Waste Industries Usa Inc), Revolving Credit Agreement (Waste Industries Usa Inc)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable(i) within fifteen (15) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or chief accounting officer of REIT, on its behalf, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and (ii) within a reasonable period of time following request therefor, any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicablewithin fifteen (15) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, in the form of Exhibit F K hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. Borrower shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit J attached hereto (a “Borrowing Base Certificate”) pursuant to which the Borrower shall calculate the amount of the Borrowing Base Appraised Value Limit and the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Funds from Operations and Net Operating Income for such fiscal quarter calendar quarter, including, without limitation, Net Operating Income for each of the Unencumbered Properties as Mortgaged Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or chief accounting officer, on its Vice President – Finance behalf, that the information contained in such statement fairly presents the Unencumbered Property Funds from Operations and Net Operating Income, including, without limitation, the Net Operating Income of each of the Unencumbered Properties Mortgaged Properties, for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower REIT and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Mortgaged Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Mortgaged Properties for each such calendar quarter and year to date and a consolidated operating statement for the Mortgaged Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Mortgaged Property during such calendar quarter (including the fourth calendar quarter in each year), (iv) financial information from each tenant of a Mortgaged Property reasonably required by Agent to determine compliance with the covenant contained in §9.8, and (v) evidence reasonably required by Agent to determine compliance with the covenant contained in §9.6;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (i) listing the Real Estate owned by REIT, the Borrower and their respective Subsidiaries (or in which REIT, the Borrower or any of their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, and (ii) listing the Indebtedness of REIT, the Borrower and their respective Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerBorrower or REIT;
(fh) promptly following Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and REIT;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which the Borrower or REIT shall file with the SEC;
(hj) upon reasonable request notice of any audits pending or threatened in writing with respect to any tax returns filed by the Agent, Borrower or REIT promptly following notice of such audit;
(k) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Mortgaged Properties;
(il) with respect to any Real Estate that is not later than November 15 of each yeara Mortgaged Property, the Consolidated cash flow projections most recent Appraisal of the Borrower for the next three yearssuch Real Estate;
(jm) promptly upon receipt thereof, copies of any and all notices of default under any loan document securing or evidencing a mortgage loan made to the Borrower or any of its Subsidiaries secured by a Lien on Real Estate, if such mortgage loan (i) constitutes Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the aggregate has an outstanding principal balance in excess of $30,000,000.00, or (iii) has been accelerated; provided that this §7.4(n) shall not apply to any Indebtedness incurred in connection with any Excluded Property;
(n) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(o) [Intentionally Omitted.]
(p) from time to time such other financial data and information in the possession of REIT, the Borrower or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against REIT, the Borrower or its any of their respective Subsidiaries and any settlement discussions relating theretothereto (to the extent that disclosure of any such letters, litigation or investigation status or settlement discussions would not waive any applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with shall deliver paper copies thereof to Agent and the SECLenders. If The Borrower authorizes Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower releases Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 3 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Financial Statements, Certificates and Information. BGI will deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated consolidated balance sheet of the Borrower BGI and its Subsidiaries as at the end last day of such fiscal year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow for such fiscal 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 GAAPGAAP (except as required by a change in GAAP or as concurred to by the Accountants), and accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of BGI or any of its Subsidiaries to continue as going concerns, by the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAccountants;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of the Borrowers, copies of the unaudited Consolidated consolidated balance sheet of the Borrower BGI and its Subsidiaries as at the end last day of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance BGI that the information contained in such financial statements fairly presents the financial position of the Borrower BGI and its Subsidiaries on the date thereof (subject to the absence of footnotes and year-end adjustments);
(c) 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 BGI in substantially the form of Exhibit C hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of any of the BorrowerBorrowers;
(fe) promptly after a Rating Agency shall have announced a change in upon request of the rating established or deemed to have been established for the Index DebtAdministrative Agent, written notice of such rating change;BGI’s annual business plan; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jf) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 3 contracts
Sources: Credit Agreement (Barnes Group Inc), Senior Unsecured Revolving Credit Agreement (Barnes Group Inc), Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the Lenders:
(a) as soon as practicable, but but, in any event not later than ninety (90) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated and consolidating balance sheet sheets of the Borrower Parent as at the end of such year, statements of cash flows, and the related audited Consolidated consolidated and consolidating statements of income, changes in capital and cash flows for such yearoperations, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAPGAAP and, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied consolidated financial statements, Certified by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAccountants;
(b) as soon as practicable, but in any event not later than forty-five (45) 45 days after the end of each fiscal quarter (including the fourth quarter) of the BorrowerBorrowers, copies of the unaudited Consolidated consolidated and consolidating balance sheet sheets and statement of operations of the Borrower Parent as at the end of such quarter, and subject to year end adjustments, the related unaudited Consolidated statements statement of income and cash flows for the portion of the Borrower’s fiscal year then elapsedflows, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; providedGAAP, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief principal financial or accounting officer of each Borrower (the Borrower or its Vice President – Finance "CFO") that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present the consolidated financial position condition of the Borrower and its Subsidiaries Borrowers as at the close of business on the date thereof (subject to year-end adjustments)) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (a “the "Compliance Certificate”") certified by the chief financial officer CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the Borrower or its Vice President – Finance in end of the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) applicable period and setting forth in reasonable detail computations evidencing compliance such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or non-compliance (as Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrowers shall include in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate certificate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory deliver forthwith to the Agent, together Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodrespect thereto;
(d) contemporaneously with annually or at such other time as may be reasonably requested by the delivery Administrative Agent, copies of the financial statements referred statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to in clause (a) above, the statement boards of all contingent liabilities involving amounts of $1,000,000.00 or more directors of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit)Borrowers;
(e) contemporaneously with with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective DateBorrowers; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Nationsrent Inc), Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Financial Statements, Certificates and Information. (a) as The Borrower will furnish to the Lender:
3.3.1 As soon as practicable, but available and in any event not later than ninety within one hundred eighty (90180) days after the end last day of each fiscal year, complete audited financial statements prepared by an independent certified public accountant of recognized standing selected by the Borrower and reasonably satisfactory to the Lender, covering the operations of the Borrower for such fiscal year and containing statements of earnings and of retained earnings and paid-in surplus for such year, statements of cash flow, and balance sheets and income statement as at the close of such year, each accompanied by (a) statements in comparative form for the preceding fiscal year, (b) all notes, appropriate schedules, disclosures, and supplemental information pertaining to such statements, (c) a certification of the Borrower, commencing with ’s chief financial officer that such financial statements fairly represent the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower Borrower’s financial condition at the end of such year, period and the related audited Consolidated statements results of income, changes in capital and cash flows for its operations during such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesperiod;
(b) as 3.3.2 As soon as practicable, but available and in any event not later than within forty-five (45) days after the end of each fiscal quarter (including of Borrower during the fourth quarter) loan term, a company prepared financial statement consisting of a balance sheet and profit and loss statement certified by the President or Chief Financial Officer of the Borrower;
3.3.3 Promptly after the commencement thereof, copies notice of each action, suit or proceeding by or before any Governmental Authority affecting the Borrower which could (singly or in the aggregate) be reasonably expected to have a Material Adverse Effect;
3.3.4 Promptly after receipt, a copy of all audits or reports submitted to the Borrower by independent public accountants in connection with any annual, special or interim audits of the unaudited Consolidated balance sheet books of the Borrower as at and any letter of comments directed by such accountants to the end of such quarter, and the related unaudited Consolidated statements of income and cash flows for the portion management of the Borrower’s fiscal year then elapsed, all ;
3.3.5 As soon as possible and in reasonable detail and prepared in accordance with GAAP any event within thirty (30) days after the foregoing Borrower knows or has reason to know that any event which would constitute a reportable event under ERISA with respect to any employee pension or other benefit plan subject to ERISA has occurred, or that the PBGC or the Borrower and its Subsidiaries for the first three quarters has instituted or will institute proceedings to terminate such plan, a certificate of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer of the Borrower setting forth details as to such reportable event and the action which the Borrower proposes to take with respect thereto, together with a copy of any notice of such reportable event which may be required to be filed with the PBGC, or any notice delivered by the PBGC evidencing its Vice President – Finance intent to institute such proceedings, or any notice to the PBGC that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject plan is to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added toterminated, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy ;
3.3.6 Immediately upon any change of the statement Borrower’s independent public accountants, notification thereof and such further information as the Lender may reasonably request concerning the resignation, refusal to stand for reappointment after completion of the Unencumbered Property Net Operating Income for current audit or dismissal of such fiscal quarter for accountants;
3.3.7 Such additional information and reports concerning the Unencumbered Properties financial condition of Borrower, including, but not limited to, reports concerning Collateral, as a groupthe Lender commercially reasonably requests, and otherwise all in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is detail reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Loan Agreement (ConforMIS Inc), Loan Agreement (ConforMIS Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and cause BPI to (and BPI will) deliver (as applicable) to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021BPI, the audited Consolidated consolidated balance sheet of the Borrower BPI and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital shareholder’s equity and cash flows for such yearthe year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGAAP which may be provided by inclusion in the Form 10-K of BPI filed with the SEC for such period provided pursuant to clause (g) below), and and, in each case, accompanied by an auditor’s report prepared without qualification as to by the scope of the audit by Accountants other than a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing qualification solely with respect to the Borrower may be satisfied by delivery internal controls over financial reporting as required under Section 404 of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesSarbanes Oxley Act;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its March 31, June 30 and September 30 fiscal quarter (including the fourth quarter) of the Borrowerquarters, copies of the unaudited Consolidated consolidated balance sheet of the Borrower BPI and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, changes in shareholders’ equity and cash flows for the portion of the BorrowerBPI’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year which may be satisfied provided by delivery of inclusion in the Form 10-Q of the Borrower BPI filed with the SEC; provided, however, that in no event shall any reference SEC for such period provided pursuant to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lenderclause (g) below), together with a certification by an Authorized Officer that is the chief principal financial or accounting officer of the Borrower or its Vice President – Finance BPI that the information contained in such financial statements fairly presents the financial position of the Borrower BPI and its Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments none of which shall be materially adverse);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance Certificate in the form of Exhibit F C-1 hereto (signed by an Authorized Officer that is the principal financial or in such accounting officer of BPI, which Compliance Certificate and each other form as Compliance Certificate required pursuant to the terms of this Agreement shall be delivered by electronic communication, including fax or email, unless the Agent may approve from time or a Bank requests executed originals, and each such Compliance Certificate so delivered shall be deemed to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Propertybe an original authentic counterpart thereof for all purposes, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense date of such financial statements and value associated with Real Estate or other Investments disposed (ii) a quarterly worksheet in the form of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodExhibit C-1A;
(d) contemporaneously promptly as they become available, a copy of each report (including any so-called management letters) submitted to the Borrower or BPI by the Accountants in connection with the delivery each annual audit of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more books of the Borrower and its Subsidiaries which are not reflected or BPI by such Accountants or in such financial statements or referred connection with any interim audit thereof pertaining to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect any phase of the indebtedness business of others, and obligations to reimburse the issuer in respect of any letters of credit)Borrower or BPI;
(e) contemporaneously with (or promptly after) the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, assets, financial condition or prospects, or operations of BPLP, BPI or, taken as a whole, the BP Group;
(f) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating changeBPI;
(g) promptly upon as soon as practicable, but in any event not later than ninety (90) days after the filing hereofend of each fiscal year of BPI, copies of all registration the Form 10-K statement filed by BPI with the SEC for such fiscal year, and as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of BPI copies of the Form 10-Q statement filed by BPI with the SEC for such fiscal quarter, provided that, in either case, if the SEC has granted an extension for the filing of such statements, BPI shall deliver such statements to the Agent within ten (other than 10) days after the exhibits thereto and any registration statements on Form S-8 or its equivalent)filing thereof with the SEC;
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in about the possession of Borrower, BPI, their respective Subsidiaries, the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against Real Estate Assets and the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) Partially-Owned Entities as the Agent or any Bank (through the Agent) may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlinecomplete rent rolls, IntraLinks or existing environmental reports, and insurance certificates with respect to the Real Estate Assets;
(i) Intentionally Deleted; and
(j) as soon as practicable, but in any event not later than ninety (90) days after the end of the fiscal year of BPLP, the audited balance sheet of BPLP at the end of each such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisyear, and the Agent makes no express related audited statements of income, changes in partners’ capital and cash flows for the year then ended, in each case setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer that is the principal financial or implied warranty regarding accounting officer of BPLP that the information contained in such Platform or financial statements fairly presents the accuracy or completeness financial position of BPLP on the date thereof, and as soon as practicable, but in any information posted thereto or contained thereon event not later than forty-five (45) days after the end of each of the March 31, June 30 and September 30 fiscal quarters of BPLP, the unaudited balance sheet of BPLP at the end of each such quarter, and the Agent related unaudited statements of income, changes in partners’ capital and cash flows for the quarter then ended, in each case setting forth in comparative form the figures for the previous fiscal quarter and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer that is the principal financial or accounting officer of BPLP that the information contained in such financial statements fairly presents the financial position of BPLP on the date thereof (subject to year-end adjustments none of which shall be materially adverse). Notwithstanding any provision of this §8.4, for so long as BPI is publically traded on the New York Stock Exchange, the Borrower shall be deemed to have no liability satisfied its obligations under subsections (a), (b), (f), (g) and (j) of any nature whatsoever to any Lenderthis §8.4 by timely filing its Form 10-Q and Form 10-K with the SEC for each applicable period, Borrower or other Person (whether sounding in tortprovided that, contract or otherwise) with respect to such Platform or any such information subsections (including any information a) and (b) above, the Borrower has delivered to the Agent within the time periods required therefor and referred to in Section 8.2 belowsubsections (a) and (b), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined statement required by a court of competent jurisdiction in a final and nonappealable judgmentsubsection (c) above.
Appears in 2 contracts
Sources: Credit Agreement (Boston Properties LTD Partnership), Credit Agreement (Boston Properties LTD Partnership)
Financial Statements, Certificates and Information. The Borrower and the Trust will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Trust, the audited Consolidated balance sheet of the Borrower Trust and its Subsidiaries at the end of such year, and the related audited Consolidated statements of income, changes in capital shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or by another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of accounting firm, the Form 10-K of the Borrower Trust filed with the SEC; providedSEC (unless the SEC has approved an extension, however, that in no which event shall any reference the Trust will deliver to any prior the Agent and each of the Banks a copy of the Form 10-Ks or Proxy Statements which may be incorporated by reference within K simultaneously with delivery to the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to AgentSEC), and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower Trust and its Subsidiaries;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) fiscal quarters of the Borrower and the Trust, respectively, copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries and the Trust and its Subsidiaries, respectively, as at the end of such quarter, and the related unaudited Consolidated statements of income income, changes in shareholder’s equity and cash flows for the portion of the Borrower’s and the Trust’s, respectively, fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect which, as to the Borrower and its Subsidiaries for the first three quarters of any fiscal year Trust, may be satisfied provided by delivery of inclusion in the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference Trust for such period provided pursuant to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lendersubsection (c) below), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance and the Trust, respectively, that the information contained in such financial statements fairly presents the financial position of the Borrower such Person and its Subsidiaries on the date thereof (subject to year-end adjustments); provided , however , that unless otherwise requested by the Agent or the Majority Banks, the Borrower shall not be required to deliver the balance sheets, statements or other matters required by this §7.4(b) to the extent the same are incorporated in the balance sheets, statements and other matters delivered to the Banks by the Trust;
(c) as soon as practicable, but in any event not later than fifty-five (55) days after the end of each of the first three (3) fiscal quarters of the Trust in each year, copies of Form 10-Q filed with the SEC (unless the SEC has approved an extension in which event the Trust will deliver such copies of the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than fifty-five (55) days after the end of the first three (3) fiscal quarters of the Borrower, copies of a Consolidated statement of Operating Cash Flow for such fiscal quarter for the Borrower and its Subsidiaries and a statement of Operating Cash Flow for such fiscal quarter for the Borrower and the Unencumbered Borrowing Base Properties, prepared on a basis consistent with the statement furnished pursuant to §6.4 together with a certification by the chief financial or chief accounting officer of the general partner of the Borrower, that the information contained in such statement fairly presents the Operating Cash Flow of the Borrower and its Subsidiaries and the Unencumbered Borrowing Base Properties for such period;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of Trust and of the general partner of the Borrower or its Vice President – Finance in the form of Exhibit F I hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.1, §8.3, §8.7, §8.9, §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Propertytherein, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All incomeWith each Compliance Certificate, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate Borrower shall be accompanied by also deliver a copy of the statement of the Unencumbered certificate (a “Borrowing Base Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification Certificate”) executed by the chief financial officer of the general partner of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income lists each of the Unencumbered Borrowing Base Properties, and certifies that all Unencumbered Borrowing Base Properties for so listed fully qualify as such under the applicable criteria in this Agreement, lists any additions or removals of Unencumbered Borrowing Base Properties during such accounting period, as appropriate, and includes such information as Agent may reasonably require to determine the economic and physical occupancy of said Unencumbered Borrowing Base Properties and the aggregate Borrowing Base Availability and the Operating Cash Flow from such Unencumbered Borrowing Base Properties during such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ef) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders stockholders of the Trust or the partners of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)[Intentionally Deleted];
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties[Intentionally Deleted];
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years[Intentionally Deleted];
(j) [Intentionally Deleted];
(k) promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and the Trust;
(l) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, each of the following with respect to each acquisition of an interest in a Subsidiary: (i) the name and structure of the Subsidiary, (ii) a description of the property owned by such Subsidiary, and (iii) such other information as the Agent may reasonably request;
(m) simultaneously with the delivery of the financial statement referred to in subsection (a) above, a statement (i) listing the Real Estate owned by the Borrower, the Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (or in which the Borrower, the Guarantors or their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower, the Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower, the Guarantors or their respective Subsidiaries or Unconsolidated Affiliates which are under “development” (as used in §8.9) and providing a brief summary of the status of such development;
(n) as soon as practicable, but in any event not later than one hundred (100) days after the end of each fiscal year of the Borrower, the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries at the end of such year, and the related unaudited consolidated statements of income, changes in shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by 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 ( provided, however , the Borrower shall not be required to provide such statements in the event that such statements would be substantially similar to the consolidated statements provided by the Trust);
(o) from time to time such other financial data and information in the possession of the Borrower Borrower, the Guarantors or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesthe Guarantors) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(kp) promptly upon their becoming availableaware of a change in any credit rating (including the Credit Rating) given by a Rating Agency or any announcement that any rating is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by a Rating Agency, copies written notice to Agent of all registration statementssuch change, filingsannouncement or action. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Banks provided that such material is in a format reasonably acceptable to Agent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-KBanks upon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrower and the Trust shall deliver paper copies thereof to Agent and the Banks. Borrower with and the SEC. If Trust authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon Borrower and the Trust release Agent shall have no and the Banks from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 2 contracts
Sources: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. Borrower will deliver to Agent:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, Borrower the audited Consolidated financial statements of Borrower required under Section 8.3(a)(i) of the Partnership Agreement;
(b) not later than sixty (60) days after the end of each fiscal quarter of Borrower (excluding the fourth fiscal quarter in each year), copies of the balance sheet of the Borrower at as of the end of such yearquarter, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements of income and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (other than the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters inclusion of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SECfootnotes); provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer Principal Accounting Officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents presents, in all material respects, the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) aboveof this §7.4, a statement (a “Compliance Certificate”) certified by the chief financial officer Principal Accounting Officer of the Borrower or its Vice President – Finance in the form of Exhibit F B hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodtherein;
(d) contemporaneously concurrently with the delivery of the financial statements referred to described in clause subsections (a) aboveand (b) of this §7.4, a certificate signed by the statement Principal Accounting Officer of all contingent liabilities involving amounts of $1,000,000.00 or more of Borrower to the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingeffect that, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of othershaving read this Agreement, and obligations based upon an examination which such officer deems sufficient to reimburse the issuer in respect enable such officer to make an informed statement, such officer is not aware of any letters Default or Event of credit)Default, or if such Default or Event of Default has occurred, specifying the facts with respect thereto;
(e) contemporaneously with the filing or mailing thereofif requested by Agent, copies of all material annual federal income tax returns and amendments thereto of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency not later than March 1 of each year during the term of the Loan, the budget for Borrower for such calendar year. Such budget shall be in form reasonably satisfactory to Agent, shall have announced been approved by the limited partners of Borrower if and to the extent required by the Partnership Agreement, and shall be submitted to Agent together with a change in narrative description of the rating established or deemed to have been established for assumptions upon which the Index Debt, written notice of budget is based and such rating changeother information as Agent may request;
(g) promptly upon simultaneously with the filing hereofdelivery of the Compliance Certificate referred to in subsection (c) of this §7.4, copies an updated Schedule 6.20(g) reflecting the addition or the expiration or termination of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 material agreements described in §6.20(g) or its equivalent);a certification from Borrower that there have been no changes in that Schedule; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in pertaining to Borrower, the possession of LGS Assets and the Borrower Mortgaged Properties, as Agent or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect request from time to time). Any Platform ; provided, however, that the foregoing requirement shall not be provided on an "construed as is" and "as available" basis, and requiring Borrower to deliver information from the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever Lessee that is not required to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except be delivered by Lessee pursuant to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentUltra Lease.
Appears in 2 contracts
Sources: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Financial Statements, Certificates and Information. Borrowers will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin five (5) days of the filing of REIT’s Form 10-K with the SEC, if applicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting member firm of KPMG International Cooperative or another nationally recognized accounting firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicablewithin five (5) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower or its Vice President – Finance REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT in the form of Exhibit F G hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) §9 setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date, with the Compliance Certificate for the quarter ending March 31, 2015 being prepared by the REIT on a good faith estimated basis. REIT shall submit with the Compliance Certificate an Unencumbered Asset Pool Certificate in the form of Exhibit F attached hereto pursuant to which the REIT shall calculate the amount of the Unencumbered Asset Pool Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal calendar quarter for each of the Unencumbered Properties as Eligible Real Estate Assets, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT that the information contained in such statement fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Properties Eligible Real Estate Assets for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 10,000,000 or more of the Borrower Borrowers and its their Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Eligible Real Estate Assets and a summary thereof in form reasonably satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Eligible Real Estate Asset during each calendar quarter (including the fourth calendar quarter in each year), and (ii) a copy of each material Lease or material amendment to any material Lease entered into with respect to an Eligible Real Estate Asset during such calendar quarter (including the fourth calendar quarter in each year);
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, to the extent not included in public filings by or on behalf of REIT, and upon request by Agent, a statement (i) listing the material Real Estate owned by the Borrowers and their Subsidiaries (or in which the Borrowers or their Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrowers and their Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrowers and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerParent Borrower or REIT;
(fh) promptly after a Rating Agency shall have announced a change in to the rating established or deemed to have been established for extent requested by Agent, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrowers;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which Parent Borrower or REIT shall file with the SEC;
(hj) upon reasonable request to the extent requested by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesEligible Real Estate Assets;
(ik) not later than November 15 January 31 of each year, the Consolidated cash flow projections of the Borrower a budget and business plan for the next three years;Borrowers and their Subsidiaries for such calendar year; and
(jl) from time to time such other financial data and information in the possession of the Borrower Borrowers or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries Borrowers and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesBorrowers) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrowers shall deliver paper copies thereof to Agent and the Borrower with the SECLenders. If Borrowers authorize Agent and Arrangers to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrowers release Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 2 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Financial Statements, Certificates and Information. The Borrowers will deliver to each Lender, which, for the purposes of this Section 6.04, may be made available electronically by the Borrowers as provided in the final sentence of this Section 6.04:
(a) 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 NEE Partners or, to the Borrower, commencing with the fiscal year ending December 31, 2021extent that audited financial statements are available for OpCo, the audited Consolidated consolidated balance sheet of the Borrower NEE Partners or, if available, OpCo, and its subsidiaries as at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital income and consolidated statements of cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year or year-end (commencing with the fiscal year 2015,) as applicable, and all such consolidated statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, such consolidated statements to be audited and accompanied by an auditor’s a report and opinion of Deloitte & Touche LLP or by other independent certified public accountants of nationally recognized standing reasonably acceptable to the Agent, which report and opinion shall be prepared without in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit. If applicable, the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to Agent, each Lender and the Agent (Issuing Banks hereby agree that the foregoing with respect to the Borrower may requirement shall be satisfied by delivery to each Lender of the NEE Partners’ annual report on Form 10-K of for the Borrower filed with the SEC; provided, however, that in no event shall any reference period for which such financial statements are to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesdelivered;
(b) for so long as audited financial statements of OpCo are not available as soon as practicable, but in any event not later than forty-five one hundred twenty (45120) days after the end of each fiscal quarter (including year of OpCo, the fourth quarter) of the Borrower, copies of the unaudited Consolidated consolidating balance sheet of the Borrower OpCo and its subsidiaries as at the end of such quarteryear, and the related unaudited Consolidated consolidating statements of income and consolidating statements of cash flows for such year, each setting forth in comparative form the portion of figures for the Borrower’s previous fiscal year then elapsedor year-end, as applicable, and all in reasonable detail and such consolidated statements to be prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial officer or accounting officer, Treasurer or Assistant Treasurer of the Borrower or its Vice President – Finance OpCo that the information contained in such financial statements fairly presents the financial position of the Borrower OpCo and its Subsidiaries on as of the date thereof end of such fiscal year and a written statement from the principal financial or accounting officer, Treasurer or Assistant Treasurer of OpCo to the effect that such officer has read a copy of this Agreement, and that, in making the examination necessary to said certification, he or she has obtained no knowledge of any Default (other than, if applicable, a potential Event of Default as a result of the failure to comply with the financial covenants set forth in Section 6.13 (provided that OpCo shall have delivered to the Agent a certificate of a Responsible Officer of OpCo certifying as to OpCo’s intention to exercise the Cure Right)), or, if such officer shall have obtained knowledge of any then existing Default, he or she shall disclose in such statement any such Default; provided that such officer shall not be liable to the Agent, the Lenders or the Issuing Banks for failure to obtain knowledge of any Default;
(c) as soon as practicable, but in any event not later than sixty (60) days after the end of each of the first three (3) fiscal quarters of OpCo, copies of the unaudited consolidating balance sheet of OpCo and its subsidiaries as at the end of such quarter, and the related consolidating statements of income and consolidating statements of cash flows for the portion of the fiscal year to which they apply, all prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer, Treasurer or Assistant Treasurer of OpCo that the information contained in such financial statements fairly presents the financial position of OpCo and its Subsidiaries as of the end of such quarter (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) abovea written statement from the principal financial or accounting officer, a statement (a “Compliance Certificate”) certified by Treasurer or Assistant Treasurer of OpCo to the chief financial effect that such officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by has read a copy of this Agreement, and that, in making the statement examination necessary to said certification, he or she has obtained no knowledge of any Default (other than, if applicable, a potential Event of Default as a result of the Unencumbered Property Net Operating Income for failure to comply with the financial covenants set forth in Section 6.13 (provided that OpCo shall have delivered to the Agent a certificate of a Responsible Officer of OpCo certifying as to OpCo’s intention to exercise the Cure Right)), or, if such fiscal quarter for the Unencumbered Properties as a groupofficer has obtained knowledge of any then existing Default, and otherwise he or she shall disclose in form and substance reasonably satisfactory such statement any such Default; provided that such officer shall not be liable to the Agent, together with a certification by the chief financial officer Lenders or the Issuing Banks for failure to obtain knowledge of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodany Default;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to nature filed by NEE Partners with the shareholders of the BorrowerSecurities and Exchange Commission;
(fe) promptly after the commencement thereof, Notice of all actions and proceedings before any court, governmental agency or arbitrator of the type described in Section 5.06 to which any Loan Party is a Rating Agency shall have announced a change in the rating established party or deemed to have been established for the Index Debt, written notice of such rating change;their respective properties are subject; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jf) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent Agent, any Lender or any Issuing Bank may reasonably request. Information concerning such litigation Reports or settlement discussions shall not include attorney-client privileged communicationsfinancial information required to be delivered pursuant to this Section 6.04 shall, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration extent any such financial statements, filings, and regular periodic reports, if any, that Borrower shall have proxy statements or other materials are included in materials otherwise filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchangeSecurities and Exchange Commission, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed to be delivered to hereunder on the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt date of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lendersfiling, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms also be delivered electronically as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment11.02.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (NextEra Energy Partners, LP)
Financial Statements, Certificates and Information. The Credit Parties will deliver to the Administrative Agent and the Term Lenders:
(a) as soon as practicable, but in any event not no later than ninety (90) days after the end of each fiscal year of Fiscal Year, (i) the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower Intersections and its Subsidiaries, as at the end of such yearFiscal Year, and the related audited Consolidated consolidated statements of incomeincome or operations, changes in capital cash flows, and cash flows shareholders' equity for such yearFiscal Year, each setting forth in comparative form the figures for the previous fiscal year Fiscal Year and all such consolidated financial statements to be in reasonable detail, prepared in accordance with GAAP, GAAP consistently applied and such consolidated financial statements to be audited and accompanied by an auditor’s a report and opinion prepared in accordance with generally accepted auditing standards by independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the scope ability of the audit Intersections and its Subsidiaries to continue as going concerns, and (ii) a Compliance Certificate duly executed by a "Big Four" accounting firm or another nationally recognized firm acceptable Financial Officer of Intersections, which, among other things, (A) attaches and certifies to the Agent foregoing consolidated financial statements, accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements, (B) certifies that the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered consolidating financial statements fairly presents in all material respects the financial condition of the Intersections and its Subsidiaries on the dates indicated therein, (C) appends calculations of the financial covenants set forth in Section 7.12 during such Fiscal Year and to Agent)the extent applicable, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower specifying whether Intersections and its SubsidiariesSubsidiaries have complied with Section 7.12, and (D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(b) as soon as practicable, but in any event not no later than forty-five (45) days after the end of each fiscal quarter Fiscal Quarter (commencing with the Fiscal Quarter ending March 31, 2017 and including the fourth quarterlast Fiscal Quarter of each Fiscal Year), (i) of the Borrower, copies of the unaudited Consolidated quarterly consolidated and consolidating (to the extent specified below) financial statements of Intersections and its Subsidiaries for such Fiscal Quarter, including the consolidated and consolidating balance sheet of the Borrower Intersections and its Subsidiaries, as at the end of such quarterFiscal Quarter, the related consolidated and consolidating statement of income or operations, and the related unaudited Consolidated statements consolidated statement of income and cash flows for such Fiscal Quarter and for the portion of the Borrower’s fiscal year Fiscal Year then elapsedended, all each such financial statements setting forth in reasonable detail comparative form the figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections, which, among other things, (A) attaches and certifies to the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; providedfinancial statements, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer of the Borrower or its Vice President – Finance (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial position condition of the Borrower Intersections and its Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the absence of footnotes), (C) sets forth in comparative form the results for and through such Fiscal Quarter with the most recent projections delivered to the Administrative Agent pursuant to Section 6.04(d), (D) appends calculations of the financial covenants set forth in Section 7.12(a) through (c) for Intersections and its Subsidiaries for the Reference Period ended as of the last day of such Fiscal Quarter or for the relevant period of determination, specifying whether Intersections and its Subsidiaries have complied with Section 7.12(a) through (c), (E) sets forth (if applicable) reconciliations to reflect changes in GAAP since the date of the last audited financial statements of Intersections and its Subsidiaries, and (F) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Quarter, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof to the Administrative Agent's reasonable satisfaction;
(c) simultaneously as soon as practicable, but in any event no later than thirty (30) days after the end of each Fiscal Month (excluding the last Fiscal Month of each Fiscal Year, which shall be provided no later than forty-five (45) days after the end of such Fiscal Quarter), (i) the unaudited monthly consolidated and consolidating (to the extent specified below) financial statements of Intersections and its Subsidiaries for such Fiscal Month, including the consolidated and consolidating balance sheet of Intersections and its Subsidiaries, as at the end of such Fiscal Month, the related consolidated and consolidating statement of income or operations, and the related consolidated statement of cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended, each such financial statements setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied (subject to year-end adjustments and the delivery absence of footnotes) and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections attaching calculations of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting covenant set forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property7.12(a), and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory acceptable to the Administrative Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;.
(d) contemporaneously as soon as practicable, but in any event no later than forty-five (45) days after the end of (i) each of the first three Fiscal Quarters of each Fiscal Year, a management discussion and analysis prepared in connection with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower Intersections and its Subsidiaries which are not reflected in for such financial statements or referred to in Fiscal Quarter and (ii) the notes thereto (includinglast Fiscal Quarter of each Fiscal Year, without limitation, all guaranties, endorsements a preliminary report regarding operations and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit)performance for such Fiscal Quarter;
(e) contemporaneously as soon as practicable, but in any event no later than ninety (90) days after the end of each Fiscal Year, a certificate duly executed by a Financial Officer certifying that the Credit Parties have materially complied at all times with the filing CFPB Consent Order or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the BorrowerCFPB Compliance Plan;
(f) promptly by not later than the last day of each Fiscal Year, a draft of an annual business plan and projections for Intersections and its Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated and consolidating balance sheets, statements of cash flows, statements of income or operations of Intersections and its Subsidiaries, in each case prepared on a month-by-month basis and such other matters reasonably requested by the Administrative Agent) and by no later than sixty (60) days after the end of each fiscal year, a Rating Agency shall have announced a change final copy of such annual business plan and projections, reflecting the same scope of information and level of detail contained in the rating established or deemed to have been established for draft business plan and projections previously delivered, approved by the Index Debt, written notice board of such rating changedirectors of Intersections;
(g) promptly upon the filing hereofreceipt thereof, copies of all registration statements any detailed audit reports, regulatory audits, financial control reports, management letters or recommendations submitted to the board of directors (other than or the exhibits thereto and audit committee of the board of directors) of the Credit Parties by independent accountants or internal auditors in connection with any registration statements on Form S-8 or its equivalent)audit of any of them;
(h) upon reasonable request immediately, and in any event within five (5) Business Days after receipt by the Agenta member of Senior Management thereof by any Credit Party or any Subsidiary thereof, evidence reasonably satisfactory to Agent copies of the timely payment of all real estate taxes for the Unencumbered Propertieseach notice or other correspondence received from any Governmental Authority concerning any investigation or possible investigation or other inquiry by such agency;
(i) not later than November 15 of each year, promptly following the Consolidated cash flow projections reasonable request of the Borrower Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and promptly following the next three yearsmodification, renewal, replacement of any insurance policy of any Credit Party, updated insurance certificates and endorsements evidencing such coverage;
(j) promptly after the delivery or receipt thereof, copies of all notices, reports and other communications delivered or received by any Credit Party in connection with the Subordinated Debt Documents;
(k) as soon as practicable, but in any event no later than ten (10) days following the end of each Fiscal Quarter (or more frequently at the election of the Credit Parties), updated Schedules 5.07, 5.08, 5.17, 5.18, 5.20 and Schedule 6 to the Perfection Certificate and in substantially the same form as the most recent schedule of the same delivered to the Administrative Agent to the Administrative Agent's reasonable satisfaction; and
(l) promptly following a request therefor, from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Term Lender may reasonably request. Information concerning Documents required to be delivered pursuant to the terms of this Agreement (to the extent any such litigation documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Intersections posts such documents, or settlement discussions provides a link thereto, on Intersections' website on the Internet at Intersections' website address; provided, however, Intersections shall not include attorney-client privileged communications, but shall otherwise include information promptly notify the Administrative Agent in writing (which may be confidential or subject to a work-product privilege so that by Electronic Medium) of the Agent and the Lenders receive the same level posting of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentdocuments.
Appears in 2 contracts
Sources: Credit Agreement (Intersections Inc), Credit Agreement (Intersections Inc)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable(i) within fifteen (15) days of the filing of the Borrower’s Form 10-K with the SEC, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or chief accounting officer of the Borrower, on its behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and (ii) within a reasonable period of time following request therefor, any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicablewithin fifteen (15) days of the filing of the Borrower’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or chief accounting officer of the Borrower or Borrower, on its Vice President – Finance behalf, 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or Borrower, on its Vice President – Finance behalf, in the form of Exhibit F K hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.1(i), §8.3(h)-(k) and §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date, and (ii) to the extent that the relevant financial information has been delivered from each tenant of a Pool Property to the Borrower or its Subsidiaries during the relevant period, a calculation of EBITDAR and a rent coverage ratio calculation for each tenant of a Pool Property based on the financial information that has been delivered from such tenant to the Borrower or its Subsidiaries during the relevant period. Borrower shall submit with the Compliance Certificate a Pool Certificate in the form of Exhibit J attached hereto (a “Pool Certificate”) pursuant to which the Borrower shall calculate the amount of the Pool Value and the Pool Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Funds from Operations and Net Operating Income for such fiscal quarter calendar quarter, including, without limitation, Net Operating Income for each of the Unencumbered Properties as Pool Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or chief accounting officer, on its Vice President – Finance behalf, that the information contained in such statement fairly presents the Unencumbered Property Funds from Operations and Net Operating Income, including, without limitation, the Net Operating Income of each of the Unencumbered Properties Pool Properties, for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Pool Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Pool Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Pool Properties for each such calendar quarter and year to date and a consolidated operating statement for the Pool Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), and (iii) evidence reasonably required by Agent to determine compliance with the covenants contained in §9 and the other covenants described in such certificate;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or in which the Borrower or any of its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, and (ii) listing the Indebtedness of the Borrower and its Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness, Non-Recourse Indebtedness, Secured Debt or Unsecured Debt;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerBorrower or CVOP II;
(fh) promptly following Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and any Guarantor;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which the Borrower shall file with the SEC;
(hj) upon reasonable request notice of any audits pending or threatened in writing with respect to any tax returns filed by the Agent, Borrower or any Guarantor promptly following notice of such audit;
(k) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesPool Properties following payment thereof;
(il) with respect to any Real Estate that is not later than November 15 of each yeara Pool Property, the Consolidated cash flow projections most recent Appraisal of the Borrower for the next three yearssuch Real Estate promptly upon finalization thereof;
(jm) promptly upon receipt thereof, copies of any and all notices of default under any loan document securing or evidencing a mortgage loan made to the Borrower or any of its Subsidiaries secured by a Lien on Real Estate, if such mortgage loan (i) constitutes Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the aggregate has an outstanding principal balance in excess of $30,000,000.00, or (iii) has been accelerated;
(n) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(o) upon Agent’s or any Lender’s written request (with such request to be made by a Lender by and through Agent), financial information for tenants of the Pool Properties that has been delivered to the Borrower or its Subsidiaries pursuant to the terms of a Lease;
(p) without limiting the terms of §2.11 and §2.12, a completed and executed Beneficial Ownership Certification if requested by the Agent or any Lender at any time Agent or such Lender determines that it is required by law to obtain such certification; and
(q) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or any of its Subsidiaries and any settlement discussions relating theretothereto (to the extent that disclosure of any such letters, litigation or investigation status or settlement discussions would not waive any applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions The Borrower shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that reasonably cooperate with the Agent and in connection with the Lenders receive publication of certain materials and/or information provided by or on behalf of the same level Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K(collectively, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by “Information Materials”) pursuant to this Section and the Borrower shall designate Information Materials (a) that are either available to the public or not material with the SEC. If any such information is not filed or furnished by respect to the Borrower with and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) that are not Public Information as “Private Information.” Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the SECLenders provided that such material is in a format reasonably acceptable to Agent, and such information material shall be deemed to have been delivered to Agent and the Agent Lenders upon Agent’s receipt thereof. Upon the request of Agent's receipt of such information from , the Borrower shall deliver paper copies thereof to Agent and the Lenders. The Borrower and the Guarantors authorize Agent, the Joint Arrangers, and the Bookrunner to disseminate any such materials, including without limitation the Information Materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agentan “Electronic System”). Any such Electronic System is provided “as is” and “as available.” The Agent shall distribute Agent, the Joint Arrangers, and the Bookrunner do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in any notice, demand, communication, information or other material provided by or on behalf of Borrower that is distributed over or by any such non-SEC filed Electronic System (“Communications”). No warranty of any kind, express, implied or furnished information to the other Lendersstatutory, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlineany warranty of merchantability, IntraLinks fitness for a particular purpose, non-infringement of third-party rights or such freedom from viruses or other electronic platforms as code defects, is made by Agent, the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisJoint Arrangers, and the Agent makes no express or implied warranty regarding such Platform or the accuracy Bookrunner in connection with the Communications or completeness the Electronic System. In no event shall the Agent, the Joint Arrangers, the Bookrunner or any of their directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any information posted thereto kind, including, without limitation, direct or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lenderindirect, Borrower special, incidental or other Person consequential damages, losses or expenses (whether sounding in tort, contract or otherwise) with respect arising out of the Borrower’s, any Guarantors’, the Agent’s, any Joint Arrangers’ or the Bookrunner's transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, the Joint Arrangers, the Bookrunner and the Lenders from any liability in connection therewith, except as to such Platform any of the Agent, the Joint Arrangers, the Bookrunner or any Lender for any actual damages (but specifically excluding any special, incidental, consequential or punitive damages) to the extent arising from the Agent’s, the Joint Arrangers, the Bookrunner or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the Lender’s own gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods. Borrower acknowledges that certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries 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. All of the Information Materials delivered by Borrower hereunder shall be deemed to be private information and shall not be shared with such Public Lenders, except for any Information Materials that are (a) filed with a final Governmental Authority and nonappealable judgmentare available to the public, or (b) clearly and conspicuously identified by the Borrower as “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof. By marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders, the Joint Arrangers, and the Bookrunner to treat such Information Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries, its Affiliates or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Information Materials constitute confidential information, they shall be treated as provided in §18.7); (iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any electronic dissemination system designated “Public Investor” or a similar designation; and (iv) the Agent, the Joint Arrangers, and the Bookrunner shall be entitled to treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of any electronic dissemination system not designated “Public Investor” or a similar designation.
Appears in 2 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent and each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred and twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower at the end of such year, and the related audited Consolidated statements statement of income, statement of retained earnings, changes in capital and statement of cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared using a federal income tax basis of accounting consistently applied, together with the certification of the chief financial officer of the General Partner that the information contained in accordance with GAAPsuch statements fairly presents the financial position of the Borrower as of the date thereof (provided that upon the request of the Agent, and such statements shall be accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm an independent certified public accountant acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to AgentMajority Banks), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five thirty (4530) days after the end of each fiscal quarter calendar month (including commencing with the fourth quarter) first calendar month after the opening of the BorrowerProject), copies of the unaudited Consolidated balance sheet statement of the Borrower as at the end income, statement of such quarterretained earnings, changes in capital and the related unaudited Consolidated statements statement of income and cash flows for such month and the portion of the Borrower’s 's fiscal year then elapsed, a statement showing the aging of all receivables and payables for the Project, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters using a federal income tax basis of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)accounting consistently applied, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance General Partner 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the a statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingthereto, without limitationand a statement of projected cash flows of the Borrower for the current fiscal year, all guaranties, endorsements in reasonable detail and other contingent obligations in respect certified by the principal financial or accounting officer of the indebtedness General Partner;
(d) within fifteen (15) days after the end of otherseach calendar quarter, a leasing report setting forth the Borrower's efforts to market and obligations to reimburse lease the issuer then unleased space in respect the Improvements and the results of any letters of credit)such efforts;
(e) contemporaneously with within fifteen (15) days after the filing or mailing thereof, copies end of all material of each calendar month (commencing after the date on which the Improvements are occupied by any tenant under a financial nature, reports or proxy statements sent Lease) a current rent roll and summary thereof in form satisfactory to the shareholders Agent as of the Borrowerend of such month, together with a listing of each tenant that has taken occupancy of the Improvements during such month, stating the name of the tenant, the date of the occupancy and the unit so occupied;
(f) promptly after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and the General Partner;
(g) promptly upon contemporaneously with the filing hereofmailing thereof, copies of all registration statements (other than information of a financial nature having a material impact on the exhibits thereto and any registration statements on Form S-8 Borrower or its equivalent);the Project sent to the partners of the Borrower; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent or the Majority Banks may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Construction Loan Agreement (Walden Residential Properties Inc), Construction Loan Agreement (Walden Residential Properties Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated 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 audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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, and accompanied by an auditor’s report prepared the consolidated statements certified without qualification as by Deloitte & Touche or by other independent certified public accountants satisfactory to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five eight (4548) days after the end of each of the first three (3) fiscal quarter (including quarters of the fourth quarter) fiscal year of the Borrower, copies of the unaudited Consolidated 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 unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F EXHIBIT D hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the applicable covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, ss.9 and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(e) within three (3) Business Days after the end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base as at the end of such month; PROVIDED, HOWEVER, that either the Borrower or the Agent may elect to convert to weekly reporting by giving the Agent or the Borrower, as the case may be, thirty (30) days prior written notice and may re-convert to monthly reporting by giving the Agent or the Borrower, as the case may be, thirty (30) days prior written notice;
(f) promptly within fifteen (15) days after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debtend of each calendar month, written notice of such rating changean Accounts Receivable aging report;
(g) promptly from time to time upon the filing hereof, copies request of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed updating those projections delivered to the Agent Banks and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentss.
Appears in 2 contracts
Sources: Credit Agreement (HPSC Inc), Credit Agreement (HPSC 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 one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Guarantor, the audited Consolidated consolidated balance sheet of the Borrower Guarantor and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of the audit Guarantor and its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm KPMG LLP or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of the Guarantor and its Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of the Borrower Guarantor and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year of the Guarantor and its Subsidiaries then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Guarantor that the information contained in such financial statements fairly presents the financial position of the Borrower Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) upon the reasonable request of the Administrative Agent, consolidating financial statements of the type referred to in subsections (a) and (b) above for the Subsidiaries of the Guarantor on an aggregated basis (i.e., consolidating with respect to the group of Subsidiaries), all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Guarantor 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 in subsection (b), to year-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 Guarantor in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ei) contemporaneously with the filing or mailing thereof, copies of all public filings containing material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements with any national securities exchange or sent to the shareholders stockholders of any Loan Party or any of its respective Subsidiaries and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any of its respective 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) promptly after simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and, in any case, simultaneously with the delivery of the Loan Request in accordance with §2.4, a Rating Agency shall have announced a change in Borrowing Base Report setting forth the rating established Borrowing Base as of the end of the immediately preceding calendar month or deemed to have been established for as of the Index Debtdate of the Loan Request, written notice of such rating changeas applicable;
(g) promptly upon simultaneously with the filing hereofdelivery of the items referred to in subsection (f) above, copies a container equipment report containing the following information: (i) a separate listing of all registration statements the number of Containers owned, rented, leased or managed by each of the Borrower and the Guarantor (other than listing which Container is owned by which entity), together with monthly utilization rate and per diem rental rate information with respect to such Containers in form and detail satisfactory to the exhibits thereto Administrative Agent; (ii) the types of container equipment which are then included in the Collateral; (iii) the aggregate Net Book Value of the container equipment then included in the Collateral; and any registration statements on Form S-8 or its equivalent);(iv) the aggregate Original Equipment Cost of the container equipment then included in the Collateral; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning such litigation Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or settlement discussions shall not include attorney-client privileged communicationson behalf of the Loan Parties or any of their respective Subsidiaries hereunder (collectively, but shall otherwise include information which “Borrower Materials”) by posting the Borrower Materials on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be confidential “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or subject their securities) (each, a “Public Lender”). Each Loan Party hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a work-product privilege so 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 Loan Parties shall be deemed to have authorized the Administrative Agent, the Arranger and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to any Loan Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (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 Lenders receive the same level of disclosure from Arranger shall be entitled to treat the Borrower with respect to such matters Materials that are not marked “PUBLIC” as has been made prior to being suitable only for posting on a portion of the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with Platform not designated “Public Investor.” Notwithstanding the Commission (foregoing or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2contained herein, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If shall not be under any such information is not filed or furnished by obligation to ▇▇▇▇ the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Term Loan Agreement (CAI International, Inc.), Term Loan 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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower at the end of such year, and the related audited Consolidated statements statement of income, statement of changes in capital shareholders, equity and statement of cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGenerally Accepted Accounting Principles, and accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm by an independent certified public accountant reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three (3) fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated balance sheet sheets of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements statement of income income, statement of changes in shareholders' equity and statement of cash flows for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)Generally Accepted Accounting Principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) as soon as practicable, but in any event no later than forty-five (45) days after the end of each fiscal quarter of the Borrower, the Borrower will provide the Agent with , for each of the Mortgaged Properties: (i) a rent roll dated as of the end of such fiscal quarter in form reasonably satisfactory to the Agent, (ii) a statement of the Net Operating Income for each Mortgaged Property for such fiscal quarter and year to date and (iii) after the last quarter of each year, a detailed statement of all income and expenses for Each Mortgaged Property for such year;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, copies of the Form 10-K statement filed with the Securities and Exchange Commission ("SEC") for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter, copies of the Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in either case if the SEC has granted an extension for the filing of such statements, Borrower shall deliver such statements to the Agent simultaneously with the filing thereof with the SEC;
(f) promptly following the filing or mailing thereof, copies of all other material of a financial naturenature filed with the SEC, reports or proxy statements sent to the shareholders and each Lender will be included on Borrower's mailing list so that it will receive copies of all press releases issued by the Borrower;
(fg) promptly after as soon as practicable, but in any event not later than sixty (60) days prior to the beginning of each fiscal year of the Borrower a Rating Agency shall have announced a change in the rating established or deemed to have been established cash flow budget for the Index Debt, written notice of Borrower and a property budget for each Mortgaged Property for such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);fiscal year; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 2 contracts
Sources: Term Loan Agreement (Amerivest Properties Inc), Revolving Credit Agreement (Amerivest Properties Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver or cause to be delivered to Agent which Agent shall promptly deliver to each Lender:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021year, the audited Consolidated balance sheet of the Borrower Parent Guarantor and its Subsidiaries at the end of such fiscal year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report and opinion prepared without qualification as to the scope of the audit by a "Big Four" accounting firm KPMG or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of the Parent Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including or ninety (90) days in the fourth quartercase of fiscal year end) of the Borrowereach fiscal year, copies of the unaudited Consolidated balance sheet of the Borrower Parent Guarantor and its Subsidiaries as at the end of such fiscal quarter, and the related unaudited Consolidated statements of income and cash flows for the portion of the BorrowerParent Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in all material respects in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification on behalf of Parent Borrower by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower Parent Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above a statement (a “Compliance Certificate”) certified on behalf of Parent Guarantor by the chief financial officer an Authorized Officer of the Borrower or its Vice President – Finance Parent Guarantor in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date§9. All income, expense expense, debt and value associated with Real Estate or other Investments acquired or disposed of or added during any fiscal quarter will be added or eliminated from or added tocalculations, as the case may be, such calculationson a Pro Forma Basis, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income Consolidated Asset NOI for such fiscal quarter for each of the Unencumbered Properties as Assets, prepared on a group, basis materially consistent with the statements furnished to Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification on behalf of Parent Guarantor by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income in all material respects Consolidated Asset NOI of the Unencumbered Properties Assets for such periodperiods;
(d) contemporaneously At any time that Parent Guarantor has an Investment Grade Rating, promptly upon Parent Borrower becoming aware of a downward change in such Investment Grade Rating (including the initial issuance of any Investment Grade Rating) or any other credit rating given by S&P, ▇▇▇▇▇’▇ or another nationally recognized rating agency to Parent Guarantor’s Debt Rating or any announcement that any such rating is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by S&P, ▇▇▇▇▇’▇ or another nationally recognized rating agency, notice of such change, announcement or action;
(e) simultaneously with the delivery of the financial statements referred to in clause subsections (a) and (b) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more (i) a Rent Roll for each of the Borrower Unencumbered Assets and its Subsidiaries which are not reflected a summary thereof in such financial statements or referred form reasonably satisfactory to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect Agent as of the indebtedness end of otherseach fiscal quarter (including the fourth calendar quarter in each year), and obligations to reimburse the issuer in respect of any letters of credit);
(eii) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders an operating statement for each of the BorrowerUnencumbered Assets for each such fiscal quarter and year to date and a consolidated operating statement for the Unencumbered Assets for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging report, it being agreed that the forms of the Rent Rolls and the operating statements being provided under the Existing Credit Agreement are satisfactory;
(f) promptly after simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, upon reasonable request by Agent, a Rating Agency shall have announced a change in statement (i) listing the rating established or deemed to have been established Unencumbered Assets owned by the Borrowers including the property name, location, number of units, Total Consolidated Operating Property Value (including the applicable methodology for the Index Debtcalculating value), written notice of such rating changeUnencumbered Asset Adjusted NOI and any applicable indebtedness secured thereby;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)[Reserved];
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries Borrowers (including without limitation finalized auditors’ management letters, status of material litigation or material investigations against the Borrower or its Subsidiaries Borrowers and any settlement discussions relating theretothereto (unless the Borrowers in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports with respect to the Unencumbered Assets and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesUnencumbered Assets) as Agent or any of the Agent Lenders may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential delivered electronically directly to Agent or subject made available to Agent pursuant to an accessible website and Lenders provided that such material is in a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and Lenders upon Agent’s receipt thereof or access to the Lenders if website containing such Form 10-Kmaterial. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SECBorrowers shall deliver paper copies thereof to Agent and Lenders. If The Borrowers authorize Agent and Arrangers to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrowers release Agent makes no express or implied warranty regarding such Platform or and Lenders from any liability in connection therewith (other than the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the based on Agent’s gross negligence or willful misconduct misconduct). Delivery of a copy of the Agent annual or quarterly, as determined by a court applicable, financial statements of competent jurisdiction in a final Parent Guarantor filed with the Securities and nonappealable judgmentExchange Commission shall satisfy the requirements of §7.4(a) or §7.4(b), as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Independence Realty Trust, Inc.), Credit Agreement (Independence Realty Trust, 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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower at the end of such year, and the related audited Consolidated statements statement of income, statement of changes in capital shareholders, equity and statement of cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGenerally Accepted Accounting Principles, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm by an independent certified public accountant reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three (3) fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated balance sheet sheets of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements statement of income income, statement of changes in shareholders’ equity and statement of cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)Generally Accepted Accounting Principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) as soon as practicable, but in any event no later than forty-five (45) days after the end of each fiscal quarter of the Borrower, the Borrower will provide the Agent with, for each parcel of Real Estate: (i) a rent roll dated as of the end of such fiscal quarter in form reasonably satisfactory to the Agent, (ii) a statement of the Net Operating Income for each parcel of Real Estate for such fiscal quarter and year to date and (iii) after the last quarter of each year, a detailed statement of all income and expenses for each parcel of Real Estate for such year;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, and to the extent not previously provided pursuant to this §7.4, copies of the Form 10-K statement filed with the Securities and Exchange Commission (“SEC”) for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter, copies of the Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in either case if the SEC has granted an extension for the filing of such statements, Borrower shall deliver such statements to the Agent simultaneously with the filing thereof with the SEC;
(f) promptly following the filing or mailing thereof, copies of all other material of a financial naturenature filed with the SEC, reports or proxy statements sent to the shareholders and each Lender will be included on Borrower’s mailing list so that it will receive copies of all press releases issued by the Borrower;
(fg) promptly after as soon as practicable, but in any event not later than sixty (60) days prior to the beginning of each fiscal year of the Borrower a Rating Agency shall have announced a change in the rating established or deemed to have been established cash flow budget for the Index Debt, written notice Borrower and a property budget for each parcel of Real Estate for such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);fiscal year; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Amerivest Properties Inc), Unsecured Revolving Credit Agreement (Amerivest Properties Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal year years:
(i) in the case of the BorrowerSALP, commencing with the fiscal year ending December 31, 2021if prepared, the audited Consolidated consolidated balance sheet of the Borrower SALP and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of incomeoperations, changes in capital funds available for distribution and cash flows for the year then ended, in each case (except for cash flow statements) with supplemental consolidating schedules provided by SALP; and
(ii) in the case of Sovran, the audited consolidated and consolidating (for Subsidiaries which own Real Estate, if any Subsidiary becomes the owner of Real Estate pursuant to §8.6 or §8.7 hereof) balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP and its Subsidiaries) at the end of such year, and the related audited consolidated and consolidating (for Subsidiaries which own Real Estate, if any Subsidiary becomes the owner of Real Estate pursuant to §8.6 or §8.7 hereof) statements of operations, cash flows and shareholders' equity for the year then ended; each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and and, in each case, accompanied by (x) a certification by the principal financial officer of SALP or Sovran, as applicable, that the information contained in such financial statements fairly presents the financial position of SALP or Sovran (as the case may be) and its Subsidiaries on the date thereof and (y) an auditor’s 's report prepared without qualification as to by the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAccountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its fiscal quarter quarters:
(including i) in the fourth quarter) case of the BorrowerSALP, if prepared, copies of the unaudited Consolidated consolidated balance sheet of the Borrower SALP and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income operations, funds available for distribution and cash flows for the portion of the Borrower’s SALP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to cash flow statements) provided by SALP; and
(ii) in the case of Sovran, copies of the unaudited consolidated and consolidating (for Subsidiaries which own Real Estate, if any Subsidiary becomes the owner of Real Estate pursuant to §8.6 or §8.7 hereof) balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP and its Subsidiaries) as at the end of such quarter, and the related unaudited consolidated and consolidating (for Subsidiaries which own Real Estate, if any Subsidiary becomes the owner of Real Estate pursuant to §8.6 or §8.7 hereof) statements of operations and cash flows for the portion of Sovran's fiscal year then elapsed; all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial officer of the Borrower SALP or its Vice President – Finance Sovran, as applicable, that the information contained in such financial statements fairly presents the financial position of SALP or Sovran (as the Borrower case may be) and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified in the form of Exhibit D-2 hereto signed by the chief financial officer of the Borrower SALP or its Vice President – Finance Sovran, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since March 31, 2008; and, in the form case of Exhibit F hereto (or in such other form as the Agent may approve from time to time) Sovran, setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period§10 hereof;
(d) contemporaneously promptly as they become available, a copy of each report (including any so-called management letters) submitted to any Borrower or any Guarantor or any of their respective subsidiaries by the Accountants in connection with the delivery each annual audit of the financial statements referred books of any Borrower or any Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more any phase of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect business of any letters of credit)Borrower or any Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements nature sent to the shareholders holders of any Indebtedness of any Borrower or any Guarantor (other than the BorrowerLoans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;
(f) promptly after contemporaneously with the filing or mailing thereof, copies of all material of a Rating Agency shall have announced a change in financial nature filed with the rating established SEC or deemed sent to have been established for the Index Debt, written notice stockholders of such rating changeSovran;
(g) promptly upon as soon as practicable, but in any event not later than ninety (90) days after the filing hereofend of each fiscal year of Sovran, copies of all registration statements the Form 10-K statement filed by Sovran with the SEC for such fiscal year, and as soon as practicable, but in any event not later than forty-five (other than 45) days after the exhibits thereto and any registration statements on end of each fiscal quarter of Sovran, copies of the Form S-8 or its equivalent);10-Q statement filed by Sovran with the SEC for such fiscal quarter; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information about the Borrowers, the Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities which is prepared by such Person in the possession normal course of its business or is required for securities and tax law compliance as the Borrower Administrative Agent or its Subsidiaries (any Lender may reasonably request, including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries occupancy information and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower insurance certificates with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information Real Estate (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final Unencumbered Properties) and nonappealable judgmenttax returns.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Sovran Acquisition LTD Partnership), Revolving Credit and Term Loan Agreement (Sovran Self Storage 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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated and combined balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated and combined statement of income, changes in capital income and consolidated and combined statement of cash flows flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and combined statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied audited by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesindependent certified public accountant;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated consolidated and combined balance sheet of the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated and combined statement of income and consolidated and combined statement of cash flows flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or treasurer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or treasurer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F EXHIBIT C hereto (or in such other form as the Agent may approve from time to timea "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period10;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with as soon as practicable after the filing or mailing thereof, copies of all material of a financial naturestatements, disclosure statements, reports and proxies filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(fe) promptly as soon as practicable, but in any event not later than thirty (30) days after a Rating Agency shall have announced a change in the rating established or deemed to have been established filing of the 10K of the Borrower, annual income statements, balance sheets and cash flow statements for the Index Debt, written notice immediately succeeding fiscal year of such rating changethe Borrower and its Subsidiaries delivered to the Administrative Agent;
(gf) promptly upon as soon as practicable notice of the filing hereof, copies of all registration statements (other than Borrower's and SLC's intent to cause the exhibits thereto and any registration statements on Form S-8 or its equivalent);Shareholder Distribution to occur; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jg) from time to time such other additional information regarding the financial data and information in the possession position of the Borrower or and its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Financial Statements, Certificates and Information. The Parent and the Borrowers will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated balance sheet of the Borrower Parent and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s report prepared certified without qualification as to the scope by Coopers & ▇▇▇▇▇▇▇ LLP or by other independent certified public accountants of the audit by recognized national standing, which statements shall include a "Big Four" accounting firm footnote which identifies any Default or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery Event of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Parent, copies of the unaudited Consolidated consolidated balance sheet of the Borrower Parent and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s Parent's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial officer or accounting officers of each of the Borrower or its Vice President – Finance Borrowers and the Parent that the information contained in such financial statements fairly presents the financial position of the Borrower Parent and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with promptly upon the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial officer or accounting officers of the Borrower or its Vice President – Finance Borrowers and the Parent in substantially the form of Exhibit F C attached hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations (i) calculating the Leverage Ratio for purposes of determining the Applicable Margin and (ii) evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, (S)10 hereof and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with promptly upon the filing or mailing thereof, copies of all material information of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the BorrowerParent;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(je) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent or any Bank may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(kf) promptly once each calendar year, or more frequently as determined by the Agent or the Majority Banks, upon the request of the Agent or the Majority Banks, the Borrowers will, at their becoming availableown expense, copies of all registration statements, filings, obtain and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered deliver to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information Banks appraisal reports in form and substance and from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable appraisers satisfactory to the Agent), stating the then current fair market values of all or any portion of the Vessels subject to a Vessel Mortgage, provided, that no more than one such appraisal per calendar year shall be conducted and made at the expense of the Borrowers. The Agent first such appraisal following the Closing Date shall distribute any be completed by January 31, 1999. Such appraisal may include an inspection of each such non-SEC filed Vessel by marine engineers or furnished information to the other Lenders, and may do so surveyors selected by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentits sole discretion.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Trico Marine Services Inc), Revolving Credit Agreement (Trico Marine Services Inc)
Financial Statements, Certificates and Information. LTI will deliver or cause to be delivered or otherwise made available through electronic media (provided that LTI shall give prior written notice to each Lender of such availability) to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety one hundred five (90105) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021LTI, the audited Consolidated consolidated and consolidating balance sheet sheets of the Borrower LTI and its Subsidiaries, each as at the end of such year, and the related audited Consolidated consolidated and consolidating statements of income, changes in capital income and cash flows 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 accompanied by certified, without an auditor’s report prepared without qualification expression of uncertainty as to the scope ability of the audit LTI or any of its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm or another nationally recognized firm acceptable of independent certified public accountants satisfactory to the Agent Administrative Agent, together, for each fiscal year ending on or after December 31, 2004, with a copy of their accountants’ management letter for such fiscal year (the foregoing with respect to the Borrower may be satisfied by delivery or, in lieu thereof, copies of the LTI’s Annual Report on Form 10-K of the Borrower as filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any SEC containing such information contained in any such prior filings be deemed delivered to Agentfinancial statements and information), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of LTI, copies of the unaudited Consolidated unaudited, management-prepared consolidated and consolidating balance sheet of the Borrower LTI and its Subsidiaries, each as at the end of such quarter, and the related unaudited Consolidated consolidated and consolidating statements of income and cash flows flow for the portion of the BorrowerLTI’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance LTI that the information contained in such financial statements fairly presents the financial position of the Borrower LTI and its Subsidiaries on the date thereof (subject to year-end adjustments) year (or, in lieu thereof, copies of LTI’s Quarterly Report on Form 10-Q as filed with the SEC containing such financial statements and information);
(c) 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 LTI in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously within forty-five (45) days after the end of each fiscal quarter and fiscal year of LTI, a summary Accounts Receivable aging report with respect to all work performed by the delivery Borrowers, which report shall separately list the Accounts Receivable account debtors for each of the financial statements referred to in clause (a) above, Domestic Borrowers and the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit)Foreign Borrowers;
(e) contemporaneously as soon as available and in no event later than March 31st of each fiscal year of LTI, financial projections of LTI and its Subsidiaries for such fiscal year (on a quarter-by-quarter basis), including (i) statements of forecasted consolidated income and cash flows for LTI and its Subsidiaries for each fiscal quarter in such fiscal year and a forecasted consolidated balance sheet of LTI and its Subsidiaries as of the last day of each fiscal quarter in such fiscal year, and (ii) statements of forecasted consolidated income and cash flows for LTI and its Subsidiaries for such fiscal year and a forecasted consolidated balance sheet of LTI and its Subsidiaries as of the last day of such fiscal year, together (in the case of clauses (i) and (ii)) with the filing or mailing thereofsupporting assumptions which were reasonable when made, copies of all material of a financial nature, reports or proxy statements sent prepared in good faith in reasonable detail and consistent with LTI’s past practices in preparing projections and otherwise reasonably satisfactory in scope to the shareholders of the Borrower;Administrative Agent; and
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in regarding the possession operations and financial condition of the Borrower LTI or any of its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
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 BorrowerParent, commencing with (i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower 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 audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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 accompanied by an auditor’s report prepared related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the scope ability of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to Parent, the Borrower may be satisfied or any of their Subsidiaries to continue as going concerns, by delivery of PricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the Form 10-K consolidated balance sheet of the Borrower filed with and its Subsidiaries and the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis 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 fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of the Parent, (i) copies of the unaudited Consolidated consolidated balance sheet of the Borrower 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 unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows 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 (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §8 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income;
(e) no later than the tenth (10th) Business Day of each month, expense or, following the occurrence and value associated with Real Estate or during the continuance of an Event of Default, at such other Investments disposed of or added during any quarter will be eliminated from or added to, times as the case Administrative Agent may berequest, such calculationsa certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit D attached hereto, where applicable. The Compliance Certificate shall be accompanied 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 statement annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer jurisdiction of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income domicile of the Unencumbered Properties for such periodany Insurance Subsidiary;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(eg) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Parent or the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) 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 possession 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 Subsidiaries securities) (including without limitation auditors’ management letterseach, status of litigation or investigations against 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 Subsidiaries securities for purposes of United States Federal and any settlement discussions relating theretostate securities laws (provided, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if anyhowever, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct 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 determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Investor.”
Appears in 2 contracts
Sources: 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 and the Guarantors will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated unaudited balance sheet of the Subsidiary Property Owners and the audited balance sheet of Borrower and the Trust, respectively, at the end of such year, and the related unaudited statements (as to the Subsidiary Property Owners) and audited Consolidated statements as to Borrower and Trust of income, changes in capital shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied as to the Subsidiary Property Owners by a certification by the principal financial or accounting officer of the Subsidiary Property Owners that the information contained in such statements fairly presents the financial position of the Subsidiary Property Owners as of such date, and as to Borrower and Trust by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower and its Subsidiariesthe Guarantors; provided, however, that unless otherwise requested by the Agent or the Majority Banks, the Borrower shall not be required to deliver the balance sheets, statements or other matters required by this §7.4(a) to the extent the same are incorporated in the balance sheets, statements and other matters delivered to the Banks by the Trust;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated balance sheet of the Borrower and the Guarantors, respectively, as at the end of such quarter, and the related unaudited Consolidated statements of income income, changes in shareholder’s equity and cash flows for the portion of the Borrower’s fiscal calendar year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance and the Guarantors, respectively, that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries such Person on the date thereof (subject to year-end adjustments); provided, however, that unless otherwise requested by the Agent or the Majority Banks, the Borrower shall not be required to deliver the balance sheets, statements or other matters required by this §7.4(b) to the extent the same are incorporated in the balance sheets, statements and other matters delivered to the Banks by the Trust;
(c) simultaneously with as soon as practicable, but in any event not later than fifty-five (55) days after the delivery end of each of the financial calendar quarters, an updated Rent Roll and operating statements referred with respect to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Collateral Property, such statements and (if applicable) setting forth reconciliations reports to reflect material changes be in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously at such times the Total Development Costs do not equal or exceed $20,000,000.00, as soon as practicable, but in any event not later than the fifteen (15) days after the end of each calendar month, an updated certificate as to the Total Development Costs demonstrating Borrower’s compliance with the delivery of the financial statements referred to availability limitations set forth in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit)§2.2;
(e) contemporaneously at such times when there is an Aquia Joint Venture, as soon as practicable, but in any event not later than fifteen (15) days after the end of each calendar month, an updated certificate as to the Joint Venture Value demonstrating Borrower’s compliance with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borroweravailability limitations set forth in §2.2;
(f) promptly after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereofInternal Revenue Service, copies of all registration statements (other than the exhibits annual federal income tax returns and amendments thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for and the next three years;Guarantors; and
(jg) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries the Guarantors (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower Borrower, the Guarantors or its their respective Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect Banks provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-KBanks upon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with and the SECGuarantors shall deliver paper copies thereof to Agent and the Banks. If The Borrower and the Guarantors authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon Borrower and the Guarantors release Agent shall have no and the Banks from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ramco Gershenson Properties Trust), Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent:
(a) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT including its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital shareholders’ equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer of the Borrower or chief financial officer of REIT, on the Borrower’s behalf, that the information contained in such financial statements fairly presents the financial position of REIT including its Subsidiaries, taken as a whole, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SECaccounting firm; provided, however, that the Borrower may satisfy its obligations to deliver the financial statements described in no event shall any reference this §7.4(a) by furnishing to any prior the Agent a copy of REIT’s annual report on Form 10-Ks or Proxy Statements which may K in respect of such fiscal year together with the financial statements required to be incorporated by reference within attached thereto, provided REIT is required to file such annual report on Form 10-K with the filings then being delivered to Agent be deemed delivered to Agent nor shall any Securities and Exchange Commission and such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesfiling is actually made;
(b) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT including its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer of REIT or the Borrower or its Vice President – Finance chief financial officer of REIT, on the Borrower’s behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower and REIT including its Subsidiaries Subsidiaries, taken as a whole, on the date thereof (subject to year-end adjustmentsadjustments and absence of footnotes); provided, however, the Borrower may satisfy its obligations to deliver the financial statements described in this §7.4(b) by furnishing to the Agent a copy of REIT’s quarterly report on Form 10-Q in respect of such fiscal quarter together with the financial statements required to be attached thereto, provided REIT is required to file such quarterly report on Form 10-Q with the Securities and Exchange Commission and such filing is actually made;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a§§7.4(a) and 7.4(b), (bi) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or treasurer of the Borrower or its Vice President – Finance the chief financial officer or treasurer of REIT, on the Borrower’s behalf, in the form of Exhibit F I hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective DateBalance Sheet Date and (ii) a statement of Funds From Operations and Adjusted FFO for the relevant period. The Borrower shall submit with the Compliance Certificate an Unencumbered Pool Certificate in the form of Exhibit H attached hereto (an “Unencumbered Pool Certificate”) pursuant to which the Borrower shall calculate (x) the amount of the Unencumbered Asset Value of each Unencumbered Pool Asset, and (y) the Unencumbered Pool Aggregate Asset Value, each as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. The Compliance Such Unencumbered Pool Certificate shall be accompanied by a copy of the statement of the specify whether there are any defaults under leases at an Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodPool Asset;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause §§7.4(a) and 7.4(b), (ai) above, a schedule detailing the statement of all contingent liabilities involving amounts of $1,000,000.00 or more Net Operating Income for each of the Borrower and its Subsidiaries which are not reflected Unencumbered Pool Assets for each such calendar quarter (such schedule to be in such financial statements or referred form reasonably satisfactory to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of othersAgent), and obligations (ii) any other evidence reasonably required by the Agent to reimburse determine compliance with the issuer covenants contained in respect of any letters of credit)§9 and the other covenants covered by the Compliance Certificate;
(e) contemporaneously simultaneously with the filing delivery of the financial statements referred to in §§7.4(a) and 7.4(b) above, a statement in form and substance reasonably satisfactory to Agent (i) listing the Real Estate owned or mailing leased by REIT and its Subsidiaries (or in which REIT or any of its Subsidiaries owns an interest) and stating the location thereof and the MSA thereof (with respect to Unencumbered Pool Assets only), the date acquired, the aggregate acquisition cost for all such Real Estate, the building age, ownership type (fee simple or Ground Lease), if such Real Estate is leased pursuant to a Ground Lease, the remaining term of such Ground Lease and any renewal options thereunder, the identity of the property manager thereof (with respect to Unencumbered Pool Assets only), the identity of the Tenant thereof (and whether such Tenant is an Investment Grade Tenant) and any guarantor of such Tenant’s obligations under the applicable Lease, other financial information for such Tenant and such guarantor in Borrower’s or a Guarantor’s possession, and scheduled rents, lease expiration dates, renewal options, tenant improvement allowances which are outstanding and payable by the landlord under such Lease and other material terms of the lease(s) applicable to such Real Estate (such as termination options and purchase options), (ii) listing the Indebtedness of REIT and its Subsidiaries (excluding Indebtedness of the type described in §§8.1(a) through 8.1(d) and 8.1(f)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, copies the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness, and (iii) listing the Real Estate owned or leased by Borrower, the Guarantors and their Subsidiaries (or in which Borrower, any Guarantor, or any of all material of their Subsidiaries owns an interest) which are Land Assets or Development Properties, and for each Development Property providing a financial nature, reports or proxy statements sent to the shareholders brief summary of the Borrowerstatus of such development;
(f) promptly following the Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established Internal Revenue Service or deemed to have been established for other applicable Governmental Authority, copies of all income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and REIT;
(g) notice of any material audits pending or threatened in writing with respect to any tax returns filed by REIT or any of its Subsidiaries promptly following notice of such audit;
(h) upon the Agent’s or any Lender’s written request, evidence reasonably satisfactory to the Agent of the timely payment of all real estate taxes for the Unencumbered Pool Assets;
(i) with respect to each Tenant qualifying as an Investment Grade Tenant pursuant to clause (b) of the definition thereof, on or before the anniversary of the last Investment Grade Tenant Certificate was delivered to Agent for such Tenant, an updated Investment Grade Tenant Certificate and supporting Implied Credit Analysis for such Tenant;
(j) promptly upon becoming aware thereof, notice of a change in the credit rating of REIT, Borrower or any Investment Grade Tenant given by a Rating Agency or any announcement that any rating of REIT, Borrower or an Investment Grade Tenant is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by a Rating Agency;
(k) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(l) promptly upon the filing hereofrequest of Agent, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements of REIT which are not publicly available;
(hm) upon reasonable request without limiting the terms of §2.11 and §2.12, a completed and executed Beneficial Ownership Certification if requested by the Agent, evidence reasonably satisfactory Agent or any Lender at any time the Agent or such Lender determines that it is required by law to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;obtain such certification; and
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jn) from time to time time, such other financial data and information in the possession of the Borrower REIT or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower REIT or any of its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports for the Unencumbered Pool Assets (to the extent in Borrower’s possession), and information as to zoning and other legal and regulatory changes affecting the Borrower Borrower, any Guarantor or its Subsidiariesany Unencumbered Property Subsidiary) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 2 contracts
Sources: Credit Agreement (Global Net Lease, Inc.), Credit Agreement (Global Net Lease, Inc.)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT Guarantor and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT Guarantor that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT Guarantor and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting member firm of PriceWaterhouseCoopers LLP or another nationally recognized accounting firm reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)its reasonable discretion, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower REIT Guarantor and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower or its Vice President – Finance REIT Guarantor that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance Guarantor in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §9 and (if applicablei) setting forth reconciliations each parcel of Real Estate of the Credit Parties that is an Unencumbered Property or a Suspended Unencumbered Property and certifying (subject to reflect material changes the qualifications set forth in GAAP since clause (ii) herein); and (ii) certifying that each Unencumbered Property (other than any Suspended Unencumbered Property) used in the Effective Datecalculation of the covenants contained in §9 meets each of the criteria for qualification as an Unencumbered Property except as the Required Lenders have otherwise agreed in writing. All income, expense expense, debt and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal calendar quarter for each of the Unencumbered Properties as Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT Guarantor that the information contained in such statement fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Properties for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 1,000,000 or more of the Borrower and its Subsidiaries Credit Parties which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously simultaneously with the filing delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Unencumbered Properties and a summary thereof in form reasonably satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), and (ii) an operating statement for each of the Unencumbered Properties for each such calendar quarter and year to date and a consolidated operating statement for the Unencumbered Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging;
(f) intentionally omitted;
(g) if reasonably requested by Agent or mailing thereofLenders, promptly after they are filed with the Internal Revenue Service, copies of all material of a financial nature, reports or proxy statements sent to the shareholders annual federal income tax returns and amendments thereto of the Borrower;
(fh) promptly after a Rating Agency copies of all reports and notices reported to shareholders of the REIT Guarantor must be provided to the Agent within fifteen (15) days from the date shareholders are presented materials, provided that any item that is filed via Form 8K or otherwise publicly available through the SEC shall have announced a change in be treated as being delivered to the rating established or deemed to have been established for the Index Debt, written notice of such rating changeAgent;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which Borrower or any Guarantor shall file with the SEC;
(hj) upon reasonable request not later than December 15 of each year, a budget and business plan for the Guarantor and each Unencumbered Property for the next calendar year;
(k) to the extent requested by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(il) not later than November 15 prompt written notice of each year, any change in the Consolidated cash flow projections information provided in the Beneficial Ownership Certification delivered to any Lender that would result in a change to the list of the Borrower for the next three years;beneficial owners identified in such certification; and
(jm) from time to time such other financial data and information in the possession of the Borrower REIT Guarantor or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries Credit Parties and any settlement discussions relating theretothereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesCredit Parties) as the Agent or Lenders may reasonably request. The Borrower shall reasonably cooperate with the Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the Agent (collectively, “Information concerning such litigation Materials”) pursuant to this Section and the Borrower shall designate Information Materials (a) that are either available to the public or settlement discussions shall not include attorney-client privileged communicationsmaterial with respect to the Borrower and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, but shall otherwise include information which as “Public Information” and (b) that are not Public Information as “Private Information.” Unless and until Agent or the Lenders receive written notification to the contrary, Borrower hereby designates all Information Materials as “Private Information” for purposes of this Section and this Agreement. Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to Agent provided that such material is in a work-product privilege so that the format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders receive upon Agent’s receipt thereof. Upon the same level request of disclosure from Agent, the Borrower with respect shall deliver paper copies thereof to Agent. The Borrower and the Guarantors authorize Agent and Arranger to disseminate any such matters as has been made prior to materials, including without limitation the Effective Date; and
(k) promptly upon their becoming availableInformation Materials through the use of DebtX, copies of all registration statementsDebtDomain, filingsIntralinks, and regular periodic reports, if any, that Borrower shall have filed with the Commission (SyndTrak or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K other electronic information dissemination system (an “Electronic System”). Any such Electronic System is provided “as is” and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the “as available.” The Agent and the Lenders if such Form 10-KArranger do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in any notice, Form 10-Qdemand, Form 8-Kcommunication, registration statement information or other information material provided by or on behalf of Borrower that is filed distributed over or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower Electronic System (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent“Communications”). The Agent shall distribute No warranty of any such non-SEC filed kind, express, implied or furnished information to the other Lendersstatutory, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlineany warranty of merchantability, IntraLinks fitness for a particular purpose, non-infringement of third-party rights or such freedom from viruses or other electronic platforms as the code defects, is made by Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy Arranger in connection with the Communications or completeness the Electronic System. In no event shall the Agent, the Arranger or any of their directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any information posted thereto kind, including, without limitation, direct or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lenderindirect, Borrower special, incidental or other Person consequential damages, losses or expenses (whether sounding in tort, contract or otherwise) arising out of the Borrower’s, any Guarantors’, the Agent’s or any Arranger’s transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, the Arranger and the Lenders from any liability in connection therewith. Certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries 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 Platform Persons’ securities. The Borrower hereby agrees that it will identify that portion of the Information Materials that may be distributed to the Public Lenders and that (i) all such Information Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders and the Arranger to treat such Information Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries, its Affiliates or any such information their respective securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence Information Materials constitute confidential information, they shall be treated as provided in §18.7); (iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any electronic dissemination system designated “Public Investor” or willful misconduct of a similar designation; and (iv) the Agent and the Arranger shall be entitled to treat any Information Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in any electronic dissemination system not designated “Public Investor” or a final and nonappealable judgmentsimilar designation.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT Guarantor at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT Guarantor that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT Guarantor and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting member firm of KPMG, LLP or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of the first three calendar quarters of each fiscal quarter (including the fourth quarter) of the Borroweryear, copies of the unaudited Consolidated consolidated balance sheet of the REIT Guarantor and the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower or its Vice President – Finance REIT Guarantor that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above an executed Borrowing Base Availability Certificate in the form of Exhibit F and a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT Guarantor in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and §9. The REIT Guarantor shall submit with the other covenants described Compliance Certificate a Borrowing Base Certificate in such certificate, including, without limitation, a listing the form of each Unencumbered Property, and (if applicable) setting forth reconciliations Exhibit F attached hereto pursuant to reflect material changes in GAAP since which the Effective DateREIT Guarantor shall calculate the amount of the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense expense, debt and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal calendar quarter for each of the Unencumbered Properties as Pool Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT Guarantor that the information contained in such statement fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Pool Properties for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 1,000,000 or more of the Borrower and its Subsidiaries Credit Parties which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously simultaneously with the filing delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Pool Properties and a summary thereof in form reasonably satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), and (ii) an operating statement for each of the Pool Properties for each such calendar quarter and year to date and a consolidated operating statement for the Pool Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, upon request by Agent, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or mailing in which the Borrower or its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness (excluding, for the purposes hereof, the redemption obligations under the Partnership Agreement) of the Borrower and its Subsidiaries, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower and its Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) if requested by Agent, promptly after they are filed with the Internal Revenue Service, copies of all material of a financial nature, reports or proxy statements sent to the shareholders annual federal income tax returns and amendments thereto of the Borrower;
(fh) promptly after if requested by the Agent, not later than December 15 of each year, a Rating Agency shall have announced a change in the rating established or deemed to have been established budget and business plan for the Index Debt, written notice of such rating changeTransaction Parties and each Pool Property for the next calendar year;
(gi) promptly upon to the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request extent requested by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Pool Properties;
(ij) not later than November 15 concurrently with the date shareholders are presented such materials, copies of each year, the Consolidated cash flow projections all reports and notices reported to shareholders of the Borrower for REIT Guarantor or Borrower; provided that any item that is filed via Form 8K or otherwise publicly available through the next three years;SEC shall be treated as being delivered to the Agent; and
(jk) from time to time such other financial data and information in the possession of the Borrower or its respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries Transaction Parties and any settlement discussions relating theretothereto (unless the Borrower in good faith believes that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesTransaction Parties) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Credit Agreement (City Office REIT, Inc.), Credit Agreement (City Office REIT, Inc.)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders which the Agent shall promptly deliver to each of the Lenders:
(a) as soon as practicableNot later than 15 days following the filing of REIT’s Form 10K with the Securities and Exchange Commission for each fiscal year, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm Cherry Bekaert LLP or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicableNot later than 15 days following the filing of REIT’s Form 10Q with the Securities and Exchange Commission for the first three fiscal quarters, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including or 90 days in the fourth quartercase of fiscal year end) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the REIT and its Subsidiaries and the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower or its Vice President – Finance REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above an executed Borrowing Base Availability Certificate in the form of Exhibit F and a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and §9. REIT shall submit with the other covenants described Compliance Certificate a Borrowing Base Availability Certificate in such certificate, including, without limitation, a listing the form of each Unencumbered Property, and (if applicable) setting forth reconciliations Exhibit F attached hereto pursuant to reflect material changes in GAAP since which the Effective DateREIT shall calculate the amount of the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense expense, debt and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal calendar quarter for each of the Unencumbered Properties as Collateral Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT that the information contained in such statement fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Collateral Properties for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 1,000,000 or more of the Borrower and its Subsidiaries Loan Parties which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit, but excluding any customary carve-out guaranties and environmental indemnities);
(e) contemporaneously simultaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders delivery of the Borrowerfinancial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Collateral Properties and a summary thereof in form reasonably satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Collateral Properties for each such calendar quarter and year to date and a consolidated operating statement for the Collateral Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging report, and (iii) a copy of each Lease or material amendment to any Lease entered into with respect to a Collateral Property during such calendar quarter (including the fourth calendar quarter in each year);
(f) promptly after a Rating Agency shall have announced a change simultaneously with the delivery of the financial statements referred to in the rating established or deemed to have been established for the Index Debtsubsections (a) and (b) above, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
a statement (i) not later than November 15 of each year, listing the Consolidated cash flow projections of Real Estate owned by the Borrower for the next three years;
(j) from time to time such other financial data Loan Parties and information in the possession of the Borrower or its their Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against in which the Borrower Loan Parties or its their Subsidiaries owns an interest) and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting stating the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent location thereof and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentdate acquired.
Appears in 2 contracts
Sources: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.), Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Financial Statements, Certificates and Information. Borrowers will deliver to Lender:
(a) as 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 Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated balance sheet of the Borrower at the end of such yearsheets, and the related audited Consolidated statements of income, changes in capital and cash flows for such yearyear for each Borrower, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGenerally Accepted Accounting Principles, and accompanied reviewed by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm reasonably acceptable to the Agent Lender (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; providedand for purposes hereof, howeverLender agrees that Easley, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to AgentEndres, ▇▇▇▇▇▇▇▇ & Brackendorff, P.C. is an acceptable accounting firm), and any other information the Agent Lender may reasonably request require to complete a financial analysis of Borrowers, together with a certification by the Borrower and its Subsidiariesprincipal financial or accounting officer of Borrowers that the information contained in such financial statements fairly presents the financial position of Borrowers on the date thereof;
(b) as As soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including of Borrowers, the fourth quarter) balance sheets of the Borrower, copies of the unaudited Consolidated balance sheet of the each Borrower as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, changes in capital and cash flows for the portion of the Borrower’s fiscal year then elapsedelapsed on an aggregated basis, all (except for the changes in reasonable detail capital and cash flows) prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)Generally Accepted Accounting Principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Borrowers that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries Borrowers on the date thereof (subject to year-year end adjustments);
(c) simultaneously Simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief executive officer, chief financial officer, principal finance or accounting officer of the Borrower or its Vice President – Finance Borrowers in the form of Exhibit F B hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 Article VII and the other covenants described therein and further certifying that such officer has caused this Agreement to be reviewed and has no knowledge of any Default or Event of Default in such certificate, including, without limitation, a listing the performance or observance of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement provisions hereof during such Fiscal Quarter or at the end of such year, or, if such officer has such knowledge, specifying each Default or Event of Default and the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodnature thereof;
(d) contemporaneously Simultaneously with the delivery of the financial statements referred to in clause subsection (ab) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower a current rent roll for each Project and its Subsidiaries which are not reflected a status report on leasing activities at each Project, in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements form and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);containing such detail as Lender shall reasonable require; and
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from From time to time such other financial data and information in the possession of the Borrower or its Subsidiaries Borrowers (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating theretomarket comparable studies, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesBorrowers) as the Agent Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 2 contracts
Sources: Loan Agreement (Campus Crest Communities, Inc.), Loan Agreement (Campus Crest Communities, 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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet sheets of the Borrower and of the Company at the end of such year, and the related audited Consolidated statements of income, changes in capital operations and statements of cash flows and Funds From Operations and taxable income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGenerally Accepted Accounting Principles on a consolidated basis including the Borrower and the Related Companies, and accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm Ernst & Young LLP or by another nationally recognized firm independent certified public accountant reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SECAgent; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of for so long as the Borrower and its Subsidiariesthe Company are filing form 10-K with the SEC, the delivery of a copy thereof pursuant to paragraph (e) of this ss.7.4 shall be deemed to satisfy this paragraph (a);
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three (3) fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated balance sheet sheets of the Borrower and of the Company as at the end of such quarter, and the related unaudited Consolidated statements of operations and statements of Funds From Operations and estimated taxable income and cash flows for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)Generally Accepted Accounting Principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Company that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries of the Company on the date thereof (subject to year-end adjustments); provided, however, that for so long as the Borrower and the Company are filing form 10-Q with the SEC, the delivery of a copy thereof pursuant to paragraph (e) of this ss.7.4 shall be deemed to satisfy this paragraph (b);
(c) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three (3) fiscal quarters and not later than ninety (90) days after the end of the last fiscal quarter of each fiscal year of the Borrower, copies of a statement of the Net Operating Income for such fiscal quarter for the Unencumbered Properties, prepared on a basis consistent with the statements furnished pursuant to ss.6.4 (c), and certified by a Responsible Officer of the Company and, at the time of the annual financial statements referred to in subsection (a) above, and, if requested by the Agent, at the time of quarterly financial statements referred to in subsection (b) above, a statement setting forth the Net Operating Income for such fiscal quarter for each Unencumbered Property listed by address;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F C hereto (or in such other form as signed by a Responsible Officer of the Agent may approve from time to time) Company and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, herein and (if applicable) setting forth reconciliations to reflect material changes in GAAP Generally Accepted Accounting Principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Company, copies of the Form 10-K statement filed with the Securities and Exchange Commission ("SEC") for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter, copies of the Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in either case if the SEC has granted an extension for the filing of such statements, Borrower shall deliver such statements to the Agent simultaneously with the filing thereof with the SEC;
(f) promptly following the filing or mailing thereof, copies of all other material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders of the Borrower;
(f) Company or to the limited partners of the Borrower and copies of all corporate press releases promptly after a Rating Agency shall have announced a change in upon the rating established or deemed to have been established for the Index Debt, written notice of such rating changeissuance thereof;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (request including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness financial statements of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentUnconsolidated Entities.
Appears in 2 contracts
Sources: Credit Agreement (Liberty Property Limited Partnership), Credit Agreement (Liberty Property Limited Partnership)
Financial Statements, Certificates and Information. The US Guarantor will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety ninety-five (9095) days after the end of each fiscal year of the Borrower, commencing with US Guarantor:
(i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower US Guarantor, as at the end of such fiscal year;
(ii) the consolidating balance sheet of the US Guarantor, listing each Consolidated Subsidiary and each Excluded Fund, as at the related audited Consolidated end of such fiscal year;
(iii) the consolidated statement of income and consolidated statement of cash flows of the US Guarantor for such fiscal year; and
(iv) the consolidating statement of income only (and not the consolidating statements of incomecash flow) of the US Guarantor, changes in capital listing each Consolidated Subsidiary and cash flows each Excluded Fund for such fiscal year, each setting . Each of the balance sheets and statements delivered under this Section 6.4(a) shall (I) set forth in comparative form the figures for the previous fiscal year and all such statements to year; (II) be in reasonable detail, detail and prepared in accordance with GAAPGAAP based on the records and books of account maintained as provided in Section 6.3; (III) as to items (i) and (iii) above, include footnotes or otherwise be accompanied by information outlining in sufficient detail reasonably satisfactory to the Administrative Agent the effect of consolidating Excluded Funds, if applicable, and be accompanied by an auditor’s report prepared without qualification as to (or be delivered concurrently with the scope financial statements under this Section 6.4(a)) a certification by the principal financial or accounting officer of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to US Guarantor that the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in such financial statements presents fairly in all material respects the consolidated financial position of the US Guarantor on the date thereof and consolidated results of operations and consolidated cash flows of the US Guarantor for the periods covered thereby; and (IV) as to items (i) and (iii) above, be certified, without limitation as to scope, by PricewaterhouseCoopers LLP or another firm of independent certified public accountants reasonably satisfactory to the Administrative Agent, and shall be accompanied by (or be delivered concurrently with the financial statements under this Section 6.4(a)) a written statement from such accountants to the effect that in connection with their audit of such financial statements nothing has come to their attention that caused them to believe that the US Guarantor has failed to comply with the terms, covenants, provisions or conditions of Section 6.3, Section 7, and Section 8 of this Credit Agreement as to accounting matters (provided that such accountants may also state that the audit was not directed primarily toward obtaining knowledge of such noncompliance), or, if such accountants shall have obtained knowledge of any such prior filings noncompliance, they shall disclose in such statement any such noncompliance; provided that such accountants shall not be deemed delivered liable to Agent), and the Banks for failure to obtain knowledge of any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariessuch noncompliance;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each fiscal quarter (including the fourth quarter) of the Borrower, copies first three fiscal quarters of each fiscal year of the US Guarantor, (i) the unaudited Consolidated interim condensed consolidated balance sheet of the Borrower US Guarantor as at the end of such fiscal quarter, and (ii) the related unaudited Consolidated statements interim condensed consolidated statement of income and unaudited interim condensed consolidated statement of cash flows flow of the US Guarantor for such fiscal quarter and for the portion of the BorrowerUS Guarantor’s fiscal year then elapsed, all in reasonable detail and, with respect to clauses (i) and (ii), prepared in a manner consistent with the accounting practices and policies employed with respect to the audited financial statements reported in the US Guarantor’s most recent Form 10-K filed with the Securities and Exchange Commission (subject to the application of accounting principles as of the implementation date of, and with respect to, Financial Accounting Standards Board Interpretative No. 46-Revised) and prepared in accordance with GAAP (Rule 10-01 of Regulation S-X of the foregoing with respect Securities and Exchange Commission, and including footnotes or otherwise accompanied by information outlining in sufficient detail reasonably satisfactory to the Borrower Administrative Agent the effect of consolidating Excluded Funds, if applicable, and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with concurrently therewith a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that US Guarantor that, in the information contained in such financial statements fairly presents opinion of management of the US Guarantor, all adjustments necessary for a fair presentation of (A) the results of operations of the US Guarantor for the periods covered thereby, (B) the financial position of the Borrower and its Subsidiaries on US Guarantor at the date thereof thereof, and (C) the cash flows of the US Guarantor for periods covered thereby have been made (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial officer officer, treasurer or general counsel of the Borrower or its Vice President – Finance US Guarantor in substantially the form of Exhibit F H hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 8 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All incomeDecember 31, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period2006;
(d) contemporaneously promptly after the same are available, copies of each annual report, proxy, if any, or financial statement or other report or communication sent to the holders of Equity Securities of the US Guarantor who are not Affiliates of the US Guarantor, and copies of all annual, interim and current reports and any other report of a material nature (it being understood that filings in the ordinary course of business pursuant to Sections 13(d), (f) and (g) of the Securities Exchange Act of 1934 are not material) which the US Guarantor may file or be required to file with the delivery SEC under Section 13 or 15(d) of the financial statements referred to in clause (a) above, the statement Securities Exchange Act of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others1934, and obligations not otherwise required to reimburse be delivered to the issuer in respect of any letters of credit);Administrative Agent pursuant hereto; and
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent (having been requested to do so by any Bank) may reasonably request. Information concerning .
(f) Documents required to be delivered pursuant to Section 6.4(a), (b), (c) or (d) (to the extent any such litigation financial statements, reports or settlement discussions shall not include attorney-client privileged communications, but shall proxy statements are included in materials otherwise include information which filed with the SEC) may be confidential delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the US Guarantor posts such documents, or subject provides a link thereto on the US Guarantor’s internet website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other replacement website of which the US Guarantor has given proper notice to a work-product privilege so that the Administrative Agent and each Bank; or (ii) on which such documents are posted on the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reportsUS Guarantor’s behalf on IntraLinks/IntraAgency or another relevant website, if any, that Borrower to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the US Guarantor shall have filed with deliver paper copies of such documents to the Commission (Administrative Agent or any Governmental Authority substituted thereforBank who requests, in writing, the US Guarantor to deliver such paper copies until written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) the US Guarantor shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Bank of the posting of any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commissionsuch documents. Notwithstanding anything contained herein, in every instance the US Guarantor shall be required to provide paper copies of the certificates or statements of officers required by Section 6.4(a), (b) or (c) to the contrary in this Section 8.1 Administrative Agent. Except for such certificates or in Section 8.2statements of officers, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Administrative Agent shall have no liability obligation to request the delivery or to maintain copies of the documents referred to above, and in any nature whatsoever event shall have no responsibility to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) monitor compliance by the US Guarantor with respect to such Platform or any such information (including any information referred request for delivery, and each Bank shall be solely responsible for requesting delivery to in Section 8.2 below), except to the extent it or maintaining its copies of such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentdocuments.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Financial Statements, Certificates and Information. The Borrower and the Trust will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Trust, the audited Consolidated balance sheet of the Borrower Trust and its Subsidiaries at the end of such year, and the related audited Consolidated statements of income, changes in capital shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or by another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of accounting firm, the Form 10-K of the Borrower Trust filed with the SEC; providedSEC (unless the SEC has approved an extension, however, that in no which event shall any reference the Trust will deliver to any prior the Agent and each of the Banks a copy of the Form 10-Ks or Proxy Statements which may be incorporated by reference within K simultaneously with delivery to the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to AgentSEC), and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower Trust and its Subsidiaries;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) fiscal quarters of the Borrower and the Trust, respectively, copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries and the Trust and its Subsidiaries, respectively, as at the end of such quarter, and the related unaudited Consolidated statements of income income, changes in shareholder’s equity and cash flows for the portion of the Borrower’s and the Trust’s, respectively, fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect which, as to the Borrower and its Subsidiaries for the first three quarters of any fiscal year Trust, may be satisfied provided by delivery of inclusion in the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference Trust for such period provided pursuant to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lendersubsection (c) below), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance and the Trust, respectively, that the information contained in such financial statements fairly presents the financial position of the Borrower such Person and its Subsidiaries on the date thereof (subject to year-end adjustments); provided, however, that unless otherwise requested by the Agent or the Majority Banks, the Borrower shall not be required to deliver the balance sheets, statements or other matters required by this §7.4(b) to the extent the same are incorporated in the balance sheets, statements and other matters delivered to the Banks by the Trust;
(c) as soon as practicable, but in any event not later than fifty-five (55) days after the end of each of the first three (3) fiscal quarters of the Trust in each year, copies of Form 10-Q filed with the SEC (unless the SEC has approved an extension in which event the Trust will deliver such copies of the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than fifty-five (55) days after the end of the first three (3) fiscal quarters of the Borrower, copies of a Consolidated statement of Operating Cash Flow for such fiscal quarter for the Borrower and its Subsidiaries and a statement of Operating Cash Flow for such fiscal quarter for the Borrower and the Mortgaged Properties, prepared on a basis consistent with the statement furnished pursuant to §6.4 together with a certification by the chief financial or chief accounting officer of the general partner of the Borrower, that the information contained in such statement fairly presents the Operating Cash Flow of the Borrower and its Subsidiaries and the Mortgaged Properties for such period;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of Trust and of the general partner of the Borrower or its Vice President – Finance in the form of Exhibit F I hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Propertytherein, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All incomeWith each Compliance Certificate, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate Borrower shall be accompanied by also deliver a copy of the statement of the Unencumbered certificate (a “Borrowing Base Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification Certificate”) executed by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more general partner of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto that (including, without limitation, all guaranties, endorsements and other contingent obligations in respect i) lists each of the indebtedness of othersMortgaged Properties, and obligations certifies that all Mortgaged Properties so listed fully qualify as such under the applicable criteria in this Agreement, lists any additions or removals of Mortgaged Properties during such accounting period, as appropriate, and includes such information as Agent may reasonably require to reimburse determine the issuer in respect economic and physical occupancy of any letters of credit);said Mortgaged Properties and the aggregate Borrowing Base Availability and the Operating Cash Flow from such Mortgaged Properties during such period, and (ii) lists each New Development Activity and New Redevelopment Activities.
(ef) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders stockholders of the Trust or the partners of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon as soon as practicable but in any event not later than fifty five (55) days after the filing hereofend of each of the first three (3) fiscal quarters of the Borrower, copies of all registration an updated Rent Roll for each Mortgaged Property and operating statements (other than and, to the exhibits thereto and any registration statements on Form S-8 extent available to Borrower or its equivalent)Subsidiaries, tenant sales reports with respect to the Mortgaged Properties with respect to such fiscal quarter, such statements and reports to be in form reasonably satisfactory to the Agent;
(h) upon reasonable request by as soon as practicable but in any event not later than one hundred (100) days after the end of the fourth fiscal quarter of the Borrower, an updated Rent Roll for each Mortgaged Property and rolling four (4) quarter operating statements and, to the extent available to Borrower or its Subsidiaries, tenant sales reports with respect to the Mortgaged Properties, such statements and reports to be in form reasonably satisfactory to the Agent, evidence reasonably satisfactory together with copies of any Leases entered into with respect to a Mortgaged Property not otherwise required to be delivered to Agent of the timely payment of all real estate taxes for the Unencumbered Propertiespursuant to §7.21;
(i) not later than November 15 of each yearevidence that all real estate taxes and other assessments relating to the Mortgaged Property have been timely paid, the Consolidated cash flow projections of the Borrower except for the next three yearsthose being contested as provided in §7.8;
(j) [Intentionally omitted];
(k) promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and the Trust;
(l) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, each of the following with respect to each acquisition of an interest in a Subsidiary: (i) the name and structure of the Subsidiary, (ii) a description of the property owned by such Subsidiary, and (iii) such other information as the Agent may reasonably request;
(m) simultaneously with the delivery of the financial statement referred to in subsection (a) above, a statement (i) listing the Real Estate owned by the Borrower, the Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (or in which the Borrower, the Guarantors or their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower, the Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower, the Guarantors or their respective Subsidiaries or Unconsolidated Affiliates which are under “development” (as used in §8.9) and providing a brief summary of the status of such development;
(n) not later than thirty (30) days prior to the end of each fiscal year of the Borrower a budget and business plan for the next fiscal year and a budget for each Mortgaged Property;
(o) as soon as practicable, but in any event not later than one hundred (100) days after the end of each fiscal year of the Borrower, the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries at the end of such year, and the related unaudited consolidated statements of income, changes in shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by 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 (provided, however, the Borrower shall not be required to provide such statements in the event that such statements would be substantially similar to the consolidated statements provided by the Trust); and
(p) from time to time such other financial data and information in the possession of the Borrower Borrower, the Guarantors or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesthe Guarantors) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect Banks provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-KBanks upon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrower and the Trust shall deliver paper copies thereof to Agent and the Banks. Borrower with and the SEC. If Trust authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon Borrower and the Trust release Agent shall have no and the Banks from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 2 contracts
Sources: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
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 Fiscal Year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital income and consolidated statements of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K ability of the Borrower filed with or any of its Subsidiaries to continue as going concerns, by Ernst & Young LLP or by other independent certified public accountants satisfactory to the SEC; providedAdministrative Agent, howeverwhich shall include a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, that and that, in making the examination necessary to said certification, they have obtained no event knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any reference to any prior 10-Ks then existing Default or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor Event of Default, they shall disclose in such statement any such information contained in Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis Default or Event of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including of the fourth quarter) first three Fiscal Quarters of the Borrower, copies of the unaudited Consolidated consolidated balance sheet of the Borrower Borrrower and its Subsidiaries and of the Paperchase Companies as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and consolidated statements of cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries and the Paperchase Companies on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jd) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants, management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning Documents required to be delivered pursuant to this Section 7.4 (to the extent any such litigation or settlement discussions shall not include attorney-client privileged communications, but shall documents are included in materials otherwise include information which filed with the United States Securities and Exchange Commission) may be confidential or subject delivered electronically and if so delivered, shall be deemed to a work-product privilege so that have been delivered on the Agent and the Lenders receive the same level of disclosure from date (i) on which the Borrower with respect to posts such matters as has been made prior to documents, or provides a link thereto on the Effective DateBorrower’s website on the Internet at the website address listed in Section 14.6; and
or (kii) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reportson which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, that to which each Lender and each Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall have filed with deliver paper copies of such documents to the Commission (Administrative Agent or any Governmental Authority substituted thereforLender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any national securities exchange, including each Form 8-K, Form 10-K such documents and Form 10-Q filed with the Commission. Notwithstanding anything provide to the contrary Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 event shall be deemed delivered have no responsibility to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished monitor compliance by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SECrequest for delivery, such information and each Lender shall be deemed delivered solely responsible for requesting delivery to the Agent upon the Agent's receipt it or maintaining its copies of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentdocuments.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Borders Group Inc), Senior Secured Credit Agreement (Pershing Square Capital Management, L.P.)
Financial Statements, Certificates and Information. The Credit Parties will deliver to the Administrative Agent and the Lenders:
(a) as soon as practicable, but in any event not later than the earlier of ninety (90) days after the end of each fiscal year of Fiscal Year and fifteen (15) days after the Borrower, commencing date required to be filed with the fiscal year ending December 31SEC, 2021, (i) the audited Consolidated consolidated and consolidating balance sheet of the Borrower Holdings and its Subsidiaries, as at the end of such yearFiscal Year, and the related audited Consolidated consolidated and consolidating statements of incomeincome or operations, changes in capital and cash flows and shareholders’ equity for such yearFiscal Year, each setting forth in comparative form the figures for the previous fiscal year Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP, GAAP consistently applied and such consolidated financial statements to be audited and accompanied by an auditor’s a report and opinion prepared in accordance with generally accepted auditing standards by ▇▇▇▇▇▇ LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the scope ability of Holdings and its Subsidiaries to continue as going concerns, together with (x) a written statement from such accountants (to the audit extent then available on commercially reasonable terms) to the effect that, in making the examination necessary to said certification, nothing has come to their attention to cause them to believe that any Default or Event of Default has occurred or specifying those Defaults or Events of Defaults that they have become aware of and (y) a copy of their accountants’ management letter (if any) for such Fiscal Year and (ii) a Compliance Certificate duly executed by a "Big Four" accounting firm or another nationally recognized firm acceptable Financial Officer of Holdings, which, among other things, (A) attaches and certifies to the Agent foregoing consolidated and consolidating financial statements, accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements (the foregoing with respect to the Borrower which may be satisfied by delivery of the Form management discussion and analysis provided for in Holdings’ 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agentreport), (B) specifying whether the Credit Parties are in compliance with Section 7.13 and (C) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any other information Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesnature thereof;
(b) as soon as practicable, but in any event not later than thirty (30) days after the end of each Fiscal Month (including the last Fiscal Month of each Fiscal Year), (i) the unaudited monthly consolidated and consolidating financial statements of Holdings and its Subsidiaries for such Fiscal Month, including the consolidated and consolidating balance sheet of Holdings and its Subsidiaries, as at the end of such Fiscal Month, the related consolidated and consolidating statements of income or operations, cash flows and shareholders’ equity for such Fiscal Month and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied, (ii) a statement of change in any intercompany accounts, and (iii) for each Fiscal Month that is the last Fiscal Month of a Fiscal Quarter, a Compliance Certificate duly executed by a Financial Officer of Holdings, which, among other things, (A) attaches and certifies to the foregoing financial statements, (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial condition of Holdings and its Subsidiaries on the dates indicated therein (subject to year-end adjustments and the absence of footnotes), (C) sets forth in comparative form the results for and through such Fiscal Month with the most recent projections delivered to the Administrative Agent pursuant to Section 6.04(d), (D) specifying whether the Credit Parties are in compliance with Section 7.13, (E) sets forth (if applicable) reconciliations to reflect changes in GAAP since the date of the Audited Financial Statements and (F) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof to the Administrative Agent’s reasonable satisfaction; provided that, with respect to each Fiscal Month that is not the last Fiscal Month of a Fiscal Quarter, delivery of such financial statements to the Administrative Agent shall be deemed to be a representation by the Credit Parties that the information contained in such financial statements fairly presents in all material respects the financial condition of Holdings and its Subsidiaries on the dates indicted therein (subject to year-end adjustments and the absence of footnotes);
(c) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including Fiscal Quarter, a management discussion and analysis prepared in connection with the fourth quarter) of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated financial statements of income Holdings and cash flows its Subsidiaries for the portion of the Borrower’s fiscal year then elapsed, all such Fiscal Quarter (which may be any management and discussion analysis provided for in reasonable detail Holdings’ Form 10-Q report for such Fiscal Quarter; provided that any management discussion and analysis prepared in accordance connection with GAAP (the foregoing with respect to the Borrower financial statements of Holdings and its Subsidiaries for the first three quarters fourth Fiscal Quarter of any fiscal year may each Fiscal Year shall not be satisfied by delivery of the required to be as comprehensive in scope and detail as is customary for one provided in a Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lenderreport), together with a certification by the chief financial officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery not later than December 31 of the financial statements referred to in clause (a) aboveeach Fiscal Year, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower an annual business plan and projections for Holdings and its Subsidiaries which are not reflected in for the following Fiscal Year on a monthly basis (such financial projections to include consolidated and consolidating balance sheets, statements of cash flows, statements of income or referred to in the notes thereto (including, without limitation, all guaranties, endorsements operations of Holdings and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of creditits Subsidiaries prepared on a month-by-month basis);
(e) contemporaneously with the filing or mailing promptly upon receipt thereof, copies of all material of a any detailed audit reports, financial naturecontrol reports, reports management letters or proxy statements sent recommendations submitted to the shareholders board of directors (or the audit committee of the Borrowerboard of directors) of the Credit Parties by independent accountants or internal auditors in connection with any audit of any of them;
(f) promptly after a Rating Agency shall have announced a change in the rating established same are available, copies of each annual report, proxy or deemed financial statement or other report or communication sent to have been established for the Index Debtstockholders of any Credit Party, written notice and copies of such rating changeall annual, regular, periodic and special reports and registration statements which the any Credit Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(g) promptly upon the filing hereofpromptly, and in any event within two (2) Business Day after receipt thereof by any Credit Party or any Subsidiary thereof, copies of all registration statements (each notice or other than correspondence received from the exhibits thereto and SEC or any registration statements on Form S-8 other Governmental Authority concerning any investigation or its equivalent)possible investigation or other inquiry by such agency regarding financial or other operational results of any Credit Party or any Subsidiary;
(h) upon reasonable request by the Agentpromptly after delivery or receipt thereof, evidence reasonably satisfactory to Agent of the timely payment copies of all real estate taxes for notices, reports and other communications delivered or received by any Credit Party in connection with the Unencumbered PropertiesPrepetition Debt Documents and not later than five (5) Business Days following the effectiveness thereof, copies of any new Prepetition Debt Document or any amendment, supplement, waiver, or other modification, replacement or renewal with respect to any Prepetition Debt Document;
(i) not later than November 15 of each year, (i) promptly following the Consolidated cash flow projections reasonable request of the Borrower Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party, and (ii) promptly following the next three yearsmodification, renewal, replacement of any insurance policy of any Credit Party, updated insurance certificates and endorsements evidencing such coverage;
(j) as soon as practicable, but in any event not later than ten (10) days (or such longer period as agreed by the Administrative Agent in its discretion) following the end of each Fiscal Quarter (or more frequently at the election of the Credit Parties), (i) an updated Perfection Certificate as to each Credit Party in substantially the same form as the Perfection Certificate most recently delivered to the Administrative Agent (with such scope and detail as the Administrative Agent’s may reasonably require) or a certificate confirming that there has been no change in such information since the Perfection Certificate delivered on the Closing Date or the most recent Perfection Certificate delivered pursuant to this Section 6.04(j) and (ii) updated Schedules 5.07, 5.17, 5.18, 5.20 and 7.08 in substantially the same form as the most recent schedule of the same delivered to the Administrative Agent to the Administrative Agent’s reasonable satisfaction;
(k) substantially simultaneously therewith, any financial data and other information delivered pursuant to the Prepetition Debt Documents not otherwise provided under this Agreement and, promptly following a request therefor, from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower request with respect to the Credit Parties, including without limitation, updates and such matters as has been made prior other information and copies of documents with respect to pending litigation or the Effective Date; andsettlement or compromise thereof.
(kl) promptly upon their becoming availableafter the filing thereof, copies of all registration statementspleadings, filingsmotions, applications, financial information and regular periodic reportsother papers and documents filed by any Credit Party in the Chapter 11 Cases, if anywhich papers and documents shall also be given or served on the Administrative Agent’s counsel;
(m) promptly after the sending thereof, that Borrower shall have filed with copies of all written reports given by any Credit Party to the Commission (Official Committee or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with unofficial creditors’ committee in the Commission. Notwithstanding anything Chapter 11 Cases related to the contrary in this Section 8.1 operations, business, assets, properties or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to financial condition of the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) Borrowers (including, without limitation, Syndtrak Onlineaudits, IntraLinks appraisals, valuations, projections and other financial reports) containing information not otherwise already available to the Administrative Agent and the Lenders other than any written reports subject to privilege, provided that such Person may redact any confidential information contained in any such written report if it provides a summary of the nature of the information redacted to the Administrative Agent;
(n) (i) on October 13, 2015, a supplement to the Initial Approved Budget in substantially the same form (including the same assumptions and methodology made or used therein) updated and extending the period of such other electronic platforms Initial Approved Budget to cover a 13-week period, and (ii) on the Tuesday of each week thereafter (each such day, a “Supplemental Budget Delivery Date”) (i.e., commencing on October 20, 2015) a supplemental 13 week cash flow budget extending and supplementing the Approved Budget most recently delivered in substantially the same form (including the same assumptions and methodology made or used therein); provided that (A) for each supplemental budget delivered pursuant to this Section 6.04(n), the Required Lenders shall have the right to approve and dispute such supplemental budget and any line item contained therein (but not, for the avoidance of doubt, the Initial Approved Budget) for the Budget Period that is the calendar week occurring two weeks after such Supplemental Budget Delivery Date (i.e. with respect to the supplemental budget required to be delivered on October 20, 2015, the calendar week commencing Monday November 2, 2015) and (B) if the Required Lenders dispute any line item within the supplemental budget they shall provide specific notice thereof to the Borrowers within three Business Days of such delivery; provided further that in the case of a disputed receipt or disbursement contained in a specific line item, such receipt or disbursement (or the amount of such receipt or disbursement that is in dispute as determined by the Agent may elect from time to time). Any Platform Required Lenders) shall be provided deemed excluded and disregarded in such line item, until in each case the Required Lenders and the Borrower reach agreement as to any revision thereof; and
(o) on each Tuesday of each calendar week, commencing with October 13, 2015 (each such day, a “Variance Report Date”), a budget variance report/reconciliation (the “Variance Report”), certified by a Financial Officer, in form acceptable to the Required Lenders, setting forth the actual cash receipts and disbursements of the Holdings and its Subsidiaries (including on an "as is" individual basis for each Foreign Subsidiary of Holdings) (i) for the Budget Period ending immediately prior to such Variance Report Date and "as available" (ii) on a cumulative basis, for the period commencing on the Petition Date and ending on the Friday immediately preceding such Variance Report Date (the “Cumulative Period”), in each case on (A) a line-item basis as of the end of the Budget Period and the Cumulative Period, respectively, and (B) in aggregate as of the end of the Budget Period and the Cumulative Period, respectively, the variance in dollar amounts of the actual disbursements for each Budget Period and the Cumulative Period, respectively, from those budgeted amounts for the corresponding Budget Period and the Cumulative Period, respectively, reflected in the Approved Budget and the variance of the actual cash receipts for the Budget Period from those budgeted amounts for the corresponding Budget Period and the Cumulative Period, respectively, reflected in the Approved Budget. Promptly following the delivery of Variance Reports, a Financial Officer of the Borrowers shall host a telephone conference call for the Administrative Agent makes no express or implied warranty regarding and its advisors and the Lenders and their advisors to review the Variance Reports. Documents required to be delivered pursuant to Section 6.04 (to the extent any such Platform documents are included in materials otherwise filed with the SEC or the accuracy Bankruptcy Court) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the applicable Credit Party posts such documents and provides a link thereto on such Credit Party’s website on the Internet at the website address listed on Schedule 11.02; or completeness (ii) on which such documents are posted on the applicable Credit Party’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon the request of the Administrative Agent, the applicable Credit Party shall deliver paper copies of such documents to the Administrative Agent until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower Representative shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any information posted thereto or contained thereon such documents and provide to the Administrative Agent and each Lender by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no liability obligation to request the delivery or to maintain copies of the documents referred to above, and in any nature whatsoever event shall have no responsibility to monitor compliance by any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred request for delivery, and each Lender shall be solely responsible for requesting delivery to in Section 8.2 below), except to the extent it or maintaining its copies of such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentdocuments.
Appears in 2 contracts
Sources: Debtor in Possession Credit Agreement (American Apparel, Inc), Restructuring Support Agreement (American Apparel, Inc)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent, in form and substance satisfactory to the Agent:
(a) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-K with the SEC, if applicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, shareholders’ equity, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer of the REIT, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable reasonably approved by the Agent and who shall have authorized REIT to deliver such financial statements and certifications thereof to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SECAgent; provided, however, that in no event shall any reference to any prior following an IPO Event, the Form 10-Ks K filed with or Proxy Statements furnished to the SEC by the Borrower (and which may be incorporated by reference within is available online at the filings then being delivered to Agent website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) shall be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of have been provided by the Borrower and its Subsidiariesunder this reporting requirement;
(b) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance REIT that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments); provided, however, that following an IPO Event, the Form 10-Q filed with or furnished to the SEC by the Borrower (and which is available online at the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) shall be deemed to have been provided by the Borrower under this reporting requirement;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a§§7.4(a) and 7.4(b), (bi) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance REIT in the form of Exhibit F H hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date, and (ii) a statement of Cash Available for Distribution for the relevant period. The Borrower shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit G attached hereto (a “Borrowing Base Certificate”) pursuant to which the Borrower shall calculate the amount of the Borrowing Base Mortgage Loan Amount, Debt Yield and the Borrowing Base Availability as of the end of the immediately preceding calendar quarter, and (iii) a calculation of the component of Adjusted Net Operating Income described in clause (b) of the definition thereof and whether the applicable property is an EBITDAR Stabilized Property or a Newly-Built Property, together with such supporting information as Agent may request (including financial statements of the applicable tenant or Operator). All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. The Compliance Such Borrowing Base Certificate shall be accompanied by specify whether there are any monetary or other defaults under Major Leases at a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower Borrowing Base Asset or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such perioddefaults under Borrowing Base Loans;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause §§7.4(a) and 7.4(b), (ai) a Rent Roll for each of the Borrowing Base Properties as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of each such Borrowing Base Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement (including payor mix statistics) for each of the Borrowing Base Properties for each such calendar quarter and year to date and a consolidated operating statement for the Borrowing Base Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to the Agent), (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Borrowing Base Property during such calendar quarter (including the fourth calendar quarter in each year), (iv) financial information from each tenant of a Borrowing Base Property reasonably required by the Agent to determine compliance with the covenants contained in §9 and the other covenants described in such certificate, and (v) other evidence reasonably required by the Agent to determine compliance with the covenants contained in §9 and the other covenants described in such certificate;
(e) simultaneously with the delivery of the financial statements referred to in §§7.4(a) and 7.4(b) above, a statement (i) listing the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower Real Estate owned by REIT and its Subsidiaries (or in which are not reflected REIT or any of its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, and whether such Real Estate constitutes a Land Asset or a Development Property, (ii) listing the Indebtedness of REIT and its Subsidiaries (excluding Indebtedness of the type described in §§8.1(a), 8.1(c), 8.1(d) and 8.1(f)), which statement shall include, without limitation, a statement of the original principal amount of such financial statements Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or referred Non-Recourse Indebtedness, and (iii) performance data with respect to in the notes thereto (Borrowing Base Loans and associated collateral, including, without limitation, all guarantiesoutstanding principal balances, endorsements and other contingent obligations in respect of the indebtedness of othersany outstanding delinquencies or defaults, and obligations to reimburse the issuer prepayments in respect whole or in part, and status of any letters of credit)leasing or occupancy;
(ef) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or reports, proxy statements and all other information sent to the shareholders owners of the Borrower;
Borrower or REIT; provided, however, that following an IPO Event, the reports and other information filed with or furnished to the SEC by the Borrower (fand which are available online at the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) promptly after a Rating Agency shall have announced a change in the rating established or be deemed to have been established for provided by the Index Debt, written notice of such rating changeBorrower under this reporting requirement;
(g) promptly following the Agent’s request, after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and REIT;
(h) promptly upon the filing hereofthereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and annual, quarterly, monthly, special (8-K) or other reports or information that REIT or any of its Subsidiaries shall file with the SEC; provided, however, that following an IPO Event the reports and statements filed with or furnished to the SEC by the Borrower (and which is available online at the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) shall be deemed to have been provided by the Borrower under this reporting requirement;
(hi) notice of any audits pending or threatened in writing with respect to any tax returns filed by REIT or any of its Subsidiaries promptly following notice of such audit;
(j) upon reasonable request by the Agent’s request, evidence reasonably satisfactory to the Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesBorrowing Base Assets;
(ik) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years[Reserved];
(jl) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(m) upon the request of Agent, updated title and UCC searches with respect to the Borrowing Base Properties; and
(n) from time to time time, such other financial data and information in the possession of the Borrower REIT or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower REIT or any of its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower REIT or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions The Agent shall not include attorney-client privileged communications, but shall otherwise include information which promptly distribute to the Lenders materials received under §7.4(a)-(e). Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to Lenders, provided that such matters as has been made prior material is in a format reasonably acceptable to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's ’s receipt thereof. Upon the request of such information from the Agent, the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable shall deliver paper copies thereof to the Agent). The Borrower authorizes the Agent shall distribute and the Arranger to disseminate any such non-SEC filed materials through the use of Intralinks, SyndTrak or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such any other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower releases the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 2 contracts
Sources: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver to the Lender:
(a) as soon as practicable, but in any event not later than ninety ninety-five (9095) days after the end of each fiscal year of the Borrower, commencing with :
(i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower Borrower, as at the end of such fiscal year, ; and
(ii) the consolidated statement of income and the related audited Consolidated statements consolidated statement of income, changes in capital and cash flows of the Borrower for such fiscal year. Each of the balance sheets and statements delivered under this Section 6.2(a) shall (I) in the case of items (i) and (ii), each setting set forth in comparative form the figures for the previous fiscal year and all such statements to year; (II) be in reasonable detail, detail and prepared in accordance with GAAPGAAP based on the records and books of account maintained as provided in Section 6.1; (III) include footnotes or otherwise be accompanied by information outlining in sufficient detail reasonably satisfactory to the Lender the effect of consolidating Excluded Funds, if applicable, and be accompanied by an auditor’s report prepared without qualification as to (or be delivered concurrently with the scope of financial statements under this Section 6.2(a)) a certification by the audit by a "Big Four" principal financial or accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K officer of the Borrower filed with that the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information financial statements presents fairly in all material respects the Agent may reasonably request to complete a consolidated financial analysis position of the Borrower on the date thereof and its Subsidiariesconsolidated results of operations and consolidated cash flows of the Borrower for the periods covered thereby; and (IV) be certified, without limitation as to scope, by PricewaterhouseCoopers LLP or another firm of independent certified public accountants reasonably satisfactory to the Lender;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of the first three fiscal quarters of each fiscal quarter (including the fourth quarter) year of the Borrower, copies of (i) the unaudited Consolidated interim condensed consolidated balance sheet of the Borrower as at the end of such fiscal quarter, and (ii) the related unaudited Consolidated statements interim condensed consolidated statement of income and unaudited interim condensed consolidated statement of cash flows flow of the Borrower for such fiscal quarter and for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and, with respect to clauses (i) and (ii), prepared in a manner consistent with the accounting practices and policies employed with respect to the audited financial statements reported in the Borrower’s most recent Form 10-K filed with the Securities and Exchange Commission and prepared in accordance with GAAP (Rule 10-01 of Regulation S-X of the foregoing with respect Securities and Exchange Commission, and including footnotes or otherwise accompanied by information outlining in sufficient detail reasonably satisfactory to the Borrower Lender the effect of consolidating Excluded Funds, if applicable, and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with concurrently therewith a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that that, in the information contained in such financial statements fairly presents opinion of management of the Borrower, all adjustments necessary for a fair presentation of (A) the results of operations of the Borrower for the periods covered thereby, (B) the financial position of the Borrower and its Subsidiaries on at the date thereof thereof, and (C) the cash flows of the Borrower for periods covered thereby have been made (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections Sections 6.2(a)(i) and (aii) and (b) above, a statement (a “Compliance Certificate”) compliance certificate certified by the chief principal financial officer officer, treasurer or general counsel of the Borrower or its Vice President – Finance in substantially the form of Exhibit F C hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 8 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All incomeDecember 31, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period2018;
(d) contemporaneously with promptly after the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which same are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereofavailable, copies of all material annual, interim and current reports and any other report of a financial naturematerial nature (it being understood that filings in the ordinary course of business pursuant to Sections 13(d), reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
and (g) promptly upon of the filing hereofSecurities Exchange Act of 1934 are not material) which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, copies of all registration statements (other than and not otherwise required to be delivered to the exhibits thereto and any registration statements on Form S-8 or its equivalent);Lender pursuant hereto; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(je) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Documents required to be delivered pursuant to this Section 6.2 may be confidential or subject delivered electronically and if so delivered, shall be deemed to a work-product privilege so that have been delivered on the Agent and the Lenders receive the same level of disclosure from date on which the Borrower with respect to posts such matters as documents, or provides a link thereto on the Borrower’s internet website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other replacement website of which the Borrower has been made prior given proper notice to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, Lender or on the SEC’s website ▇▇▇.▇▇▇.▇▇▇ to the extent that Borrower shall have any such documents are included in materials otherwise filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. Borrower will deliver to Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower at and its Subsidiaries as of the end of such year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request require to complete a financial analysis of the Borrower and its Subsidiaries; provided that so long as Borrower is required to file its audited financial statements with the Securities and Exchange Commission, the delivery of such filed financial statements shall satisfy the forgoing requirement;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the BorrowerBorrower and its Subsidiaries thereafter, copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at of the end of such quarter, and the related unaudited Consolidated statements of income income, changes in capital and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (other than the foregoing inclusion of footnotes); provided that so long as Borrower is required to file its quarterly financial statements with respect to the Borrower Securities and its Subsidiaries for Exchange Commission, the first three quarters of any fiscal year may be satisfied by delivery of such filed financial statements shall satisfy the Form 10-Q of the Borrower filed with the SECforgoing requirements; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer Principal Financial Officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents presents, in all material respects, the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end year‑end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) aboveof this §7.4, a statement (a “Compliance Certificate”) certified by the chief financial officer Principal Financial Officer of the Borrower or its Vice President – Finance in the form of Exhibit F B hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described therein;
(d) concurrently with the delivery of the financial statements described in such certificate, including, without limitationsubsections (a) and (b) of this §7.4, a listing certificate signed by the Principal Financial Officer of Borrower to the effect that, having read this Agreement, and based upon an examination which such officer deems sufficient to enable such officer to make an informed statement, such officer is not aware of any Default or Event of Default, or if such Default or Event of Default has occurred, specifying the facts with respect thereto;
(e) within sixty (60) days after the end of each Unencumbered Propertycalendar quarter, a certificate in the form of Exhibit E attached hereto (a “Borrowing Base Certificate”), certified by a Principal Financial Officer of Borrower, pursuant to which Borrower shall calculate the amount of the Borrowing Base as of the end of the immediately preceding calendar quarter; provided that (i) Borrower may, at its option, deliver up to two additional Borrowing Base Certificates each quarter with each Borrowing Base Certificate in connection with a redesignation or addition of Borrowing Base Assets as contemplated hereunder, and (if applicableii) setting forth reconciliations to reflect material changes in GAAP since Borrower shall deliver a Borrowing Base Certificate at the Effective Datetime of each request for a Loan demonstrating compliance with the requirements of §2.
1. All income, expense and value associated with Real Estate or other Investments Borrowing Base Assets disposed of or added during any such calendar quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;.
(df) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereofif requested by Agent, copies of all material annual federal income tax returns and amendments thereto of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating changeBorrower and its Subsidiaries;
(g) promptly upon not later than March 1 of each year during the filing hereofterm of the Loan, copies of all registration statements (other than the exhibits thereto budget for Borrower and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence Subsidiaries for such calendar year. Such budget shall be in form reasonably satisfactory to Agent and shall be submitted to Agent together with a narrative description of the timely payment of all real estate taxes for assumptions upon which the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time budget is based and such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent, in form and substance satisfactory to the Agent:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated unaudited consolidated balance sheet of the Borrower and its Subsidiaries at the end of such year, and the related audited Consolidated unaudited consolidated statements of income, shareholders’ equity, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied together with a certification by an auditor’s report prepared without qualification as to the scope Authorized Monogram Officer (or other officer of the audit by a "Big Four" accounting firm or another nationally recognized firm Borrower reasonably acceptable to the Agent (Agent) that the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information financial statements fairly presents the Agent may reasonably request to complete a financial analysis position of the Borrower and its SubsidiariesSubsidiaries in accordance with GAAP;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial an Authorized Monogram Officer (or other officer of the Borrower or its Vice President – Finance reasonably acceptable to the Agent) that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof in accordance with GAAP (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a§§7.4(a) and (b) above7.4(b), a statement (a “Compliance Certificate”) certified by the chief financial an Authorized Monogram Officer (or other officer of the Borrower or its Vice President – Finance reasonably acceptable to the Agent) in the form of Exhibit F G hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated The Borrower shall submit with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate an Unencumbered Pool Certificate in the form of Exhibit H attached hereto (a “Unencumbered Pool Certificate”) pursuant to which the Borrower shall be accompanied by a copy of the statement list each of the Unencumbered Property Net Operating Income for such fiscal quarter for Pool Properties, calculate the Unencumbered Properties as a groupPool Availability attributable to each of the Unencumbered Pool Properties, and otherwise in form and substance reasonably satisfactory to the Agentcomponents thereof, as of the end of the immediately preceding calendar quarter, together with a certification by such supporting information as Agent may reasonably request, and certify that each Unencumbered Pool Property included therein and in the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income calculation of the Unencumbered Properties Pool Availability satisfies the requirements contained in this Agreement for such periodthe same to be included therein;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause §§7.4(a) and 7.4(b), if requested by Agent or any Lender, (ai) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more a Rent Roll for each of the Borrower Unencumbered Pool Properties as of the end of each calendar quarter (including the fourth calendar quarter in each year), and, (ii) an operating statement for each of the Unencumbered Pool Properties for each such calendar quarter and its Subsidiaries which are not reflected year to date (such statements and reports to be in such form reasonably satisfactory to the Agent);
(e) simultaneously with the delivery of the financial statements or referred to in §§7.4(a) and 7.4(b), for each Unencumbered Pool Property as of the notes thereto end of each calendar quarter (including the fourth calendar quarter in each year) (i) a report of the Residual Developer Interests existing with respect to such Unencumbered Pool Property (including, without limitation, all guaranties, endorsements and other contingent obligations in respect proper identification of the indebtedness Person’s holding such interests) and an accounting of othersapproximate current value of the same performed in accordance with the terms of this Agreement, including, without limitation, accounting for any “incentive” or “promotion” interest to which the Persons holding such Residual Developer Interests may be entitled in connection with the sale or financial performance of such Unencumbered Pool Property or otherwise (assuming a sale as of the end of the immediately preceding calendar quarter), (ii) updated Waterfall Calculations through the end of the prior calendar quarter (including the fourth calendar quarter in each year) and year to date, (iii) the balances of any capital accounts required to be maintained pursuant to the Organizational Agreements of any Developer JV owning a direct or indirect interest in such Unencumbered Pool Property at the end of each such calendar quarter, (iv) a report of the Put Options in effect with respect to such Unencumbered Pool Property, including the option price for each such Put Option and the applicable option and lockout periods associated therewith, and obligations (v) such other information as the Agent or the Lenders may reasonably require in connection with the Residual Developer Interests and the Put Options (such statements and reports to reimburse be in form reasonably satisfactory to the issuer Agent), in each case with respect to the items delivered by Borrower pursuant to clauses (i) through (v), certified by an Authorized Monogram Officer (or other officer of any letters of creditthe Borrower reasonably acceptable to the Agent);
(ef) simultaneously with the delivery of the financial statements referred to in §§7.4(a) and 7.4(b) above, a statement listing the Real Estate owned by Borrower and its Subsidiaries (or in which Borrower or any of its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the purchase price, the Net Operating Income, approximate square footage, unit count and occupancy, and whether such Real Estate constitutes a Stabilized Property;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or reports, proxy statements and all other information sent to the shareholders owners of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established Borrower or deemed to have been established for the Index Debt, written notice any of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)Subsidiaries;
(h) upon reasonable request by promptly following the Agent’s request, evidence reasonably satisfactory to Agent after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the timely payment of all real estate taxes for the Unencumbered PropertiesBorrower and its Subsidiaries;
(i) not later than November 15 notice of each year, the Consolidated cash flow projections any audits pending or threatened in writing with respect to any tax returns filed by Borrower or any of the Borrower for the next three years;its Subsidiaries promptly following notice of such audit; and
(j) from time to time time, such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or any of its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions The Borrower shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that cooperate with the Agent and in connection with the Lenders receive publication of certain materials and/or information provided by or on behalf of the same level Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K(collectively, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by “Information Materials”) pursuant to this Section and the Borrower shall designate Information Materials (a) that are either available to the public or not material with the SEC. If any such information is not filed or furnished by respect to the Borrower with and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) that are not Public Information as “Private Information.” Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the SECLenders provided that such material is in a format reasonably acceptable to Agent, and such information material shall be deemed to have been delivered to Agent and the Agent Lenders upon Agent’s receipt thereof. Upon the request of Agent's receipt of such information from , the Borrower shall deliver paper copies thereof to Agent and the Lenders. The Borrower and the Guarantors authorize Agent and Lead Arrangers to disseminate any such materials, including without limitation the Information Materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agentan “Electronic System”). Any such Electronic System is provided “as is” and “as available.” The Agent shall distribute and the Lead Arrangers do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in any notice, demand, communication, information or other material provided by or on behalf of Borrower that is distributed over or by any such non-SEC filed Electronic System (“Communications”). No warranty of any kind, express, implied or furnished information to the other Lendersstatutory, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlineany warranty of merchantability, IntraLinks fitness for a particular purpose, non-infringement of third-party rights or such freedom from viruses or other electronic platforms as the code defects, is made by Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy Lead Arrangers in connection with the Communications or completeness the Electronic System. In no event shall the Agent, the Lead Arrangers or any of their directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any information posted thereto kind, including, without limitation, direct or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lenderindirect, Borrower special, incidental or other Person consequential damages, losses or expenses (whether sounding in tort, contract or otherwise) arising out of the Borrower’s, any Guarantors’, the Agent’s or any Lead Arrangers’ transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, the Lead Arrangers and the Lenders from any liability in connection therewith. Certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries 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 Platform Persons’ securities. The Borrower hereby agrees that it will identify that portion of the Information Materials that may be distributed to the Public Lenders and that (i) all such Information Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders and the Lead Arrangers to treat such Information Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries, its Affiliates or any such information their respective securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence Information Materials constitute confidential information, they shall be treated as provided in §18.7); (iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any electronic dissemination system designated “Public Investor” or willful misconduct of a similar designation; and (iv) the Agent and the Lead Arrangers shall be entitled to treat any Information Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in any electronic dissemination system not designated “Public Investor” or a final and nonappealable judgmentsimilar designation.
Appears in 1 contract
Sources: Credit Agreement (Monogram Residential Trust, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Banks:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Parent Companies, the Borrower and their Subsidiaries and the consolidating balance sheet of the Parent Companies, the Borrower and their Subsidiaries, each as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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, and accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of any of the audit Parent Companies, the Borrower or any of their Subsidiaries to continue as going concerns, by a "Big Four" accounting firm Ernst & Young LLP or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Borrower in each fiscal year, copies of the unaudited Consolidated consolidated balance sheet of the Parent Companies, the Borrower and their Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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 adjustmentsadjustments and the exclusion of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F D hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §11 and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed by Digitas with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(fe) promptly as soon as practicable, but in any event not later than forty-five (45) days after a Rating Agency shall have announced a change in the rating established or deemed to have been established end of each fiscal year, the Borrower’s annual budget for the Index Debt, written notice of such rating changethen current fiscal year;
(gf) promptly upon simultaneously with the filing hereofreceipt thereof, copies of all registration statements (other than any accountants’ management letters received by any of the exhibits thereto and Parent Companies, the Borrower or any registration statements on Form S-8 or its equivalent);of their Subsidiaries; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jg) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesupdated projections) as the Agent may reasonably request. Information concerning such litigation request or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from as the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable provide to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. The Credit Parties will deliver to the Administrative Agent and the Lenders:
(a) as soon as practicable, but in any event not no later than the earlier of ninety (90) days after the end of each fiscal year of Fiscal Year and fifteen (15) days after the Borrower, commencing date required to be filed with the fiscal year ending December 31SEC, 2021, (i) the audited Consolidated consolidated and consolidating balance sheet of the Borrower Holdings and its Subsidiaries, as at the end of such yearFiscal Year, and the related audited Consolidated consolidated and consolidating statements of incomeincome or operations, changes in capital and cash flows and shareholders’ equity for such yearFiscal Year, each setting forth in comparative form the figures for the previous fiscal year Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP, GAAP consistently applied and such consolidated financial statements to be audited and accompanied by an auditor’s a report and opinion prepared in accordance with generally accepted auditing standards by ▇▇▇▇▇▇ LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the scope ability of Holdings and its Subsidiaries to continue as going concerns, together with (x) a written statement from such accountants (to the audit extent available on commercially reasonable terms) to the effect that, in making the examination necessary to said certification, nothing has come to their attention to cause them to believe that any Default or Event of Default has occurred or specifying those Defaults or Events of Defaults that they have become aware of and (y) a copy of their accountants’ management letter (if any) for such Fiscal Year) and (ii) a Compliance Certificate duly executed by a "Big Four" accounting firm or another nationally recognized firm acceptable Financial Officer of Holdings, which, among other things, (A) attaches and certifies to the Agent foregoing consolidated and consolidating financial statements, accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements (the foregoing with respect to the Borrower which may be satisfied by delivery of the management discussion and analysis provided for in Holdings’ Form 10-K of report), (B) certifies that the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)consolidating financial statements fairly presents in all material respects the financial condition of the Holdings and its Subsidiaries on the dates indicated therein, (C) appends computations evidencing the Fixed Charge Coverage Ratio for the Reference Period ended as of the last day of such Fiscal Year regardless of whether compliance with such covenant is then required, and any other information to the Agent may reasonably request to complete a financial analysis extent applicable, specifying whether the Credit Parties have complied with Section 7.13, (D) appends calculations of the Borrower Capital Expenditures made by the Credit Parties during such Fiscal Year and its Subsidiariesspecifying whether the Credit Parties have complied with Section 7.14 and (E) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(b) as soon as practicable, but in any event not no later than thirty (30) days after the end of each Fiscal Month (including the last Fiscal Month of each Fiscal Year), (i) the unaudited monthly consolidated and consolidating financial statements of Holdings and its Subsidiaries for such Fiscal Month, including the consolidated and consolidating balance sheet of Holdings and its Subsidiaries, as at the end of such Fiscal Month, the related consolidated and consolidating statements of income or operations, cash flows and shareholders’ equity for such Fiscal Month and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied and (ii) a Compliance Certificate duly executed by a Financial Officer of Holdings, which, among other things, (A) attaches and certifies to the foregoing financial statements, (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial condition of Holdings and its Subsidiaries on the dates indicated therein (subject to quarterly and year-end adjustments and the absence of footnote), (C) sets forth in comparative form the results for and through such Fiscal Month with the most recent projections delivered to the Administrative Agent pursuant to Section 6.04(e), (D) appends computations evidencing the Fixed Charge Coverage Ratio for the Reference Period ended as of the last day of such Fiscal Month regardless of whether compliance with such covenant is then required, and to the extent applicable, specifying whether the Credit Parties have complied with Section 7.13, (E) appends calculations of the Capital Expenditures made by the Credit Parties during such Fiscal Month and for the portion of the Fiscal Year then ended and specifying whether the Credit Parties have complied with Section 7.14, (F) sets forth (if applicable) reconciliations to reflect changes in GAAP since the date of the last audited financial statements of Holdings and its Subsidiaries and (G) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof to the Administrative Agent’s reasonable satisfaction;
(c) as soon as practicable, but in any event no later than forty-five (45) days after the end of each fiscal quarter (including Fiscal Quarter, a management discussion and analysis prepared in connection with the fourth quarter) of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated financial statements of income Holdings and cash flows its Subsidiaries for the portion of the Borrowersuch Fiscal Quarter (which may be any management and discussion analysis provided for in Holding’s fiscal year then elapsed, all in reasonable detail Form 10-Q report for such Fiscal Quarter; provided that any management discussion and analysis prepared in accordance connection with GAAP (the foregoing with respect to the Borrower financial statements of Holdings and its Subsidiaries for the first three quarters fourth Fiscal Quarter of any fiscal year may each Fiscal Year shall not be satisfied by delivery of the required to be as comprehensive in scope and detail as is customary for one provided in a Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lenderreport), together with a certification by the chief financial officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not as soon as available and in any event no later than November 15 2:00 p.m. Eastern time (11:00 am Pacific time) on the Tuesday (or, if Tuesday is not a Business Day, on the next succeeding Business Day) of each yearweek, (i) a Borrowing Base Certificate with respect to the Consolidated cash flow projections Collateral of the Borrower for Domestic Borrowers as of the next three years;
(j) from time to time close of business on the immediately preceding Business Day, accompanied by such other financial data supporting detail, documentation and information related thereto as the Administrative Agent shall reasonably request and (ii) a sales audit report, an inventory stock ledger report, accounts receivable aging report and an inventory aging report, in the possession each case, as of the Borrower or its Subsidiaries (including without limitation auditors’ management lettersclose of business on the last Business Day of the preceding week, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating theretoin each case, property inspection and environmental reports accompanied by such supporting detail, documentation and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent may shall reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver to the Lender:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower as at the end of such year, and the related audited Consolidated statements statement of income, changes in capital income and statement of cash flows flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied together with a certification by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" principal financial or accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K officer of the Borrower filed with that the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information financial statements fairly presents the Agent may reasonably request to complete a financial analysis position of the Borrower and its Subsidiarieson the date thereof;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements statement of income and statement of cash flows flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) as soon as practicable, but in any event within thirty (30) days after the end of each month, unaudited monthly financial statements of the Borrower for such month, each prepared in accordance with GAAP;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F C hereto (or in such other form as the Agent may approve from time to timea "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 11 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereofpromptly, copies of all material pleadings, papers, notices, orders and other papers filed in or issued from the Bankruptcy Court or any appellate court in the Case and copies of a financial nature, all reports or proxy statements sent filed with the Office of the United States Trustee relating to the shareholders Case;
(f) not less frequently than weekly, a rolling thirteen (13) week cash flow projection of the Borrower in a form and in such details as is reasonably satisfactory to the Lender, updating the prior cash flow projection and, for prior periods ending up to one week prior to the date of the report, showing actual performance and any variances of actual performance from projected performance;
(g) not less frequently than weekly, a summary of accounts receivable and accounts payable of the Borrower;
(fh) promptly after not less frequently than weekly, and from time to time upon the Lender's request, a Rating Agency shall have announced a change Borrowing Base Certificate in the rating established or deemed to have been established for form of Exhibit D attached hereto (the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent"Borrowing Base Certificate");
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information upon request, a written or oral report, in detail satisfactory to the possession Lender, as to the status of any sale of assets of the Borrower under Section 363 of the Bankruptcy Code or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective DateReorganization Plan; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Virtual Communications Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal year years (or such shorter period as is 15 days greater than the period applicable to the filing of the Borrower, commencing Sovran’s Annual Report on Form 10-K with the fiscal year ending December 31SEC regardless of whether Sovran is subject to the filing requirements thereof):
(i) in the case of SALP, 2021if prepared, the audited Consolidated consolidated balance sheet of the Borrower SALP and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of incomeoperations, changes in capital funds available for distribution and cash flows for the year then ended, in each case (except for cash flow statements) with supplemental consolidating schedules provided by SALP; and
(ii) in the case of Sovran, the audited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP and its Subsidiaries) at the end of such year, and the related audited consolidated and consolidating (for Subsidiaries which own Real Estate) statements of operations, cash flows and shareholders’ equity for the year then ended; each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and and, in each case, accompanied by (x) a certification by the principal financial officer of SALP or Sovran, as applicable, that the information contained in such financial statements fairly presents the financial position of SALP or Sovran (as the case may be) and its Subsidiaries on the date thereof and (y) an auditor’s report prepared without qualification as to by the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAccountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its fiscal quarter quarters (including or such shorter period as is 15 days greater than the fourth quarterperiod applicable to the filing of Sovran’s Quarterly Report on Form 10-Q with the SEC regardless of whether Sovran is subject to the filing requirements thereof):
(i) in the case of the BorrowerSALP, if prepared, copies of the unaudited Consolidated consolidated balance sheet of the Borrower SALP and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income operations, funds available for distribution and cash flows for the portion of the BorrowerSALP’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to cash flow statements) provided by SALP; and
(ii) in the case of Sovran, copies of the unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP and its Subsidiaries) as at the end of such quarter, and the related unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) statements of operations and cash flows for the portion of Sovran’s fiscal year then elapsed; Setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial officer of the Borrower SALP or its Vice President – Finance Sovran, as applicable, that the information contained in such financial statements fairly presents the financial position of SALP or Sovran (as the Borrower case may be) and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified in the form of Exhibit D-2, or Exhibit D-3, as the case may be, signed by the chief financial officer of the Borrower SALP or its Vice President – Finance Sovran, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since September 30, 2014; and, in the form case of Exhibit F hereto (or in such other form as the Agent may approve from time to time) Sovran, setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §10 hereof and the other covenants described in a list of all Excluded Subsidiaries as of such certificate, including, without limitation, date and including a listing description of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with such Excluded Subsidiary’s Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodIndebtedness;
(d) contemporaneously promptly as they become available, a copy of each report (including any so-called management letters) submitted to any Borrower or any Guarantor or any of their respective subsidiaries by the Accountants in connection with the delivery each annual audit of the financial statements referred books of any Borrower or any Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more any phase of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect business of any letters of credit)Borrower or any Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements nature sent to the shareholders holders of any Indebtedness of any Borrower, any Guarantor or any Subsidiary (other than the BorrowerLoans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;
(f) promptly after contemporaneously with the filing or mailing thereof, copies of all material of a Rating Agency shall have announced a change in financial nature filed with the rating established SEC or deemed sent to have been established for the Index Debt, written notice stockholders of such rating changeSovran;
(g) promptly upon as soon as practicable, but in any event not later than ninety (90) days after the filing hereofend of each fiscal year of Sovran, copies of all registration statements the Form 10-K statement filed by Sovran with the SEC for such fiscal year, and as soon as practicable, but in any event not later than forty-five (other than 45) days after the exhibits thereto and any registration statements on end of each fiscal quarter of Sovran, copies of the Form S-8 or its equivalent)10-Q statement filed by Sovran with the SEC for such fiscal quarter;
(h) upon reasonable request by within 30 days after the Agentend of each fiscal year of Sovran and SALP, evidence reasonably satisfactory to Agent a five-year capital plan of the timely payment of all real estate taxes for the Unencumbered Properties;SALP and its Subsidiaries; and
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information about the Borrowers, the Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities which is prepared by such Person in the possession normal course of its business or is required for securities and tax law compliance as the Borrower Administrative Agent or its Subsidiaries (any Lender may reasonably request, including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries occupancy information and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower insurance certificates with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information Real Estate (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final Unencumbered Properties) and nonappealable judgmenttax returns.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Financial Statements, Certificates and Information. The 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 Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated consolidated balance sheet of the Borrower BGI and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of the audit BGI or any of its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm Ernst & Young LLP or another nationally recognized firm acceptable by other independent certified public accountants satisfactory to the Agent (the foregoing Bank Agents, together with respect a written statement from such accountants to the Borrower may be satisfied by delivery effect that they have read a copy of this Credit Agreement, and that, in making the Form 10-K examination necessary to said certification, they have obtained no knowledge of the Borrower filed with the SEC; providedany Default or Event of Default, howeveror, that if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall such statement any such information contained in Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis Default or Event of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Borrowers, copies of the unaudited Consolidated consolidated balance sheet of the Borrower BGI and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s Borrowers' fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance BGI that the information contained in such financial statements fairly presents the financial position of the Borrower BGI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Borrowers in substantially the form of Exhibit F E hereto (or in such other form as the Agent may approve from time to timea "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and ss. 10, the other covenants described in such certificate, including, without limitation, a listing calculation of each Unencumbered Property, the Obligor Group Requirement and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of any of the BorrowerBorrowers;
(fe) promptly after from time to time upon request of either Bank Agent, projections of BGI and its Subsidiaries updating those projections delivered to the Lenders and referred to in ss. 7.4.3 or, if applicable, updating any later such projections delivered in response to a Rating Agency shall have announced a change in the rating established or deemed request pursuant to have been established for the Index Debt, written notice of such rating change;this ss. 8.4(e); and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jf) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants, management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the either Bank Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Banks:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated 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 audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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 statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s report prepared all such consolidated statements to be certified without qualification as by Ernst & Young LLP or by other independent certified public accountants satisfactory to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated 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 unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F C hereto (or in such other form as the Agent may approve from time to time"Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, ss.13 and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders equity holders or debt holders of the Borrower;
(f) promptly after as soon as the same become available and in any event not later than January 31 of each year, an annual business plan of the Borrower and its Subsidiaries on a Rating Agency shall have announced a change in the rating established or deemed to have been established consolidated basis for such fiscal year and financial projections for the Index DebtBorrower and its Subsidiaries on a consolidated basis for the next succeeding three (3) fiscal years, written notice including statements of income and cash flow and balance sheets and the assumptions underlying such plan, all such statements to be in reasonable detail and certified by the chief financial officer of the Borrower as a reasonable forecast of the anticipated financial condition of the Borrower and its Subsidiaries on a consolidated basis and business segment basis in respect of such rating changefiscal years;
(g) promptly upon not less frequently than once each calendar year, or more frequently as determined by either Agent, appraisal reports in form and substance and from independent appraisers satisfactory to the filing hereofAgents, copies stating the then current fair market value of each of the Vessels subject to a Vessel Mortgage; all registration statements (other than such appraisals to be conducted and made at the exhibits thereto and any registration statements on Form S-8 or its equivalent);expense of the Borrower; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants', management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the either Agent or any Bank may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hvide Marine Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Banks:
(a) as soon as practicablepracticable after the end of each of the fiscal quarters of the Borrower, but in any event not later than ninety (90) days after February 5, in the end case of each fiscal year of the Borrower, commencing with the fiscal year quarter ending on December 31, 2021and November 5, in the audited Consolidated case of each fiscal quarter ending on September 30, copies of the unaudited consolidated balance sheet of the Borrower at the end of such year, and its Subsidiaries and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis unaudited consolidating balance sheet of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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);
(b) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F C hereto (or in such other form as the Agent may approve from time to time"Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, ss.13 and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders equity holders or debt holders of the Borrower;
(e) upon request of either Agent, appraisal reports in form and substance and from independent appraisers satisfactory to the Agents, stating the then current fair market value of each of the Vessels subject to a Vessel Mortgage, all such appraisals to be conducted and made at the expense of the Borrower (it being understood that the Agents may, upon notice to the Borrower, obtain such appraisals and that the cost of all such appraisals will be paid by the Borrower); provided that (i) unless a Default or Event of Default shall have occurred or be continuing, the Agents shall not request the Borrower to obtain, and the Agents shall not obtain on their own, any such appraisal before November 1, 1999 and (ii) such appraisals shall be conducted by ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc., unless such firm is unable or unwilling to conduct such appraisals in a timely fashion, in which case the Agents shall be entitled to select an alternative appraisal firm;
(f) promptly after a Rating Agency shall have announced a change promptly, copies of all material pleadings, notices, orders and other papers filed in the rating established or deemed to have been established for Cases and copies of all reports filed with the Index Debt, written notice of such rating changeUnited States Trustee in the Cases;
(g) promptly upon not less frequently than weekly, (i) a consolidated thirteen (13) week rolling cash flow forecast of the filing hereofBorrower and its Subsidiaries in form and substance reasonably satisfactory to the Agents, copies (ii) a cash flow report showing actual performance for each weekly period reflected in the Cash Budget and variance of all registration statements actual performance from projected performance in the Cash Budget, and (other than iii) a summary of accounts payable of the exhibits thereto Borrower and any registration statements on Form S-8 or its equivalent)Subsidiaries;
(h) from time to time upon request, a written or oral report, in reasonable request by detail, as to the Agent, evidence reasonably satisfactory to Agent status of the timely payment Borrower's plan of all real estate taxes for the Unencumbered Properties;reorganization; and
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status of litigation or investigations against letters and updates to the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesCash Budget) as the either Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Debtor in Possession Revolving Credit and Term Loan Agreement (Hvide Marine Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the BorrowerGuarantor, commencing with the fiscal year ending December May 31, 20212004, the audited Consolidated consolidated balance sheet of the Guarantor and the unaudited consolidated balance sheet of the Borrower and its Subsidiaries, each as at the end of such fiscal year, and the related audited Consolidated consolidated statements of income, changes in capital income and cash flows flow for such fiscal 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 accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery such audited consolidated balance sheet and financial statements of the Form 10-K of Guarantor, certified without qualification by independent certified public accountants reasonably satisfactory to the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three (3) fiscal quarter (including the fourth quarter) quarters in each fiscal year of the Borrower, commencing with the fiscal quarter ending August 31, 2004, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer Chief Financial Officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents in accordance with GAAP the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(ci) simultaneously with the delivery of the financial statements referred to in subsections (a) and subsection (b) above, and (ii) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, a statement (a “Compliance Certificate”) certified by the chief financial officer Chief Financial Officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F C hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All incomeApril 30, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period2004;
(d) contemporaneously with at any time the delivery Borrowing Base is in effect, as soon as practicable, but in any event not later than fifteen (15) days after the end of each month, a statement certified by the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more Chief Financial Officer of the Borrower in substantially the form of Exhibit D hereto and its Subsidiaries which are not reflected setting forth in such financial statements or referred to reasonable detail computations evidencing compliance with the covenants contained in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);§2.11; and
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in regarding the possession financial and other affairs of the Borrower or and its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent or any Bank may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Weider Nutrition International Inc)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent:
(a) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer, chief accounting officer or other accounting officer reasonably acceptable to Agent of REIT that the information contained in such financial statements fairly presents in all material respects the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit (other than any qualification solely as a result of the Loans becoming current obligations as a result of the impending maturity of the Loans) by a "Big Four" nationally recognized independent accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, within ten (10) days of the filing of REIT’s Form 10-Q with the SEC for the first three (3) fiscal quarters of each year but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) fiscal quarters of each year, copies of the unaudited Consolidated financial statements (including a Consolidated balance sheet and income statement) of the Borrower REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated statements of income and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer, the chief accounting officer or other accounting officer reasonably acceptable to Agent of the Borrower or its Vice President – Finance REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustmentsyear‑end adjustments and the inclusion of final year‑end statements of footnotes that were not contained in the quarterly financial statements);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer (or other accounting officer reasonably acceptable to Agent) of the Borrower or its Vice President – Finance REIT in the form of Exhibit F I hereto (or in such other form as the Agent and Borrower may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.1(f) and (g), §8.3(f)-(h), §8.3(l), §8.7(a) and (b), §8.8, §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy list of the statement each of the Unencumbered Property Properties (specifying which constitutes Development Properties or Stabilized Properties), any sales, acquisitions, dispositions or removals of Unencumbered Properties during such accounting period, the acquisition costs of any Unencumbered Properties acquired during such period, any Development Properties included within the Unencumbered Properties and the book value thereof, with respect to any Unencumbered Controlled Joint Venture Properties the applicable Distribution Percentage, Controlled Joint Venture Value and Controlled Joint Venture Allocable Net Operating Income, and indicating any Development Properties that are now valued as Stabilized Properties pursuant to clause (ii) of the definition of Development Properties, together with copies of the statements of Funds from Operations and Net Operating Income for such fiscal quarter for each of the Unencumbered Properties as included in the calculation of Unencumbered Asset Value, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer, chief accounting officer or other accounting officer reasonably acceptable to Agent of the Borrower or its Vice President – Finance REIT that the information contained in such statement fairly presents the calculation of Unencumbered Property Asset Value, Funds from Operations and Net Operating Income of the Unencumbered Properties included in the calculation of Unencumbered Asset Value for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities as of the date of such financial statements involving amounts of $1,000,000.00 or more of the Borrower Borrower, Guarantors and its their Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in excess of $1,000,000.00 in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of creditcredit that are in excess of $1,000,000.00);
(e) contemporaneously with promptly upon the filing request of Agent or mailing thereofthe Majority Lenders, copies an operating statement for each of all material of such Unencumbered Properties for each such fiscal quarter and year to date and a financial nature, consolidated operating statement for such Unencumbered Properties for each such fiscal quarter and year to date (such statements and reports or proxy statements sent to be in the form previously provided to the shareholders of the BorrowerAgent or otherwise reasonably satisfactory to Agent);
(f) to the extent not included in public filings by or on behalf of the REIT, promptly after upon the request of Agent or the Majority Lenders, a Rating Agency statement (i) listing the material Real Estate owned by Borrower, Guarantors and their Subsidiaries (or in which Borrower, Guarantors or their Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of Borrower, Guarantors and their Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall have announced include, without limitation, a change in statement of the rating established or deemed to have been established for the Index Debt, written notice original principal amount of such rating changeIndebtedness and the current amount outstanding, the holder thereof (or if there is a trustee acting on behalf of the holders, the trustee), the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of Borrower, Guarantors and their Subsidiaries which are Land or Development Properties (and with respect to Development Properties providing a brief summary of the status of such development);
(g) [Intentionally Omitted];
(h) promptly upon the filing hereofrequest of Agent, copies of all annual federal income tax returns and amendments thereto of Borrower and REIT;
(i) promptly upon the request of Agent, copies of any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which Borrower or REIT shall file with the SEC;
(hj) promptly upon reasonable the request by the of Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesProperties included in the calculation of Unencumbered Asset Value;
(ik) not later than November 15 90 days after the end of each fiscal year, the Consolidated cash flow projections of the Borrower a consolidated budget and consolidated business plan for Borrower, Guarantors and their Subsidiaries for the next three years;such calendar year; and
(jl) from time to time such other financial data and information in the possession of the Borrower Borrower, Guarantors or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries any Guarantor and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesany Guarantor) as the Agent may reasonably request. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the Agent (collectively, “Information concerning Materials”) pursuant to this §7.4 and, upon Agent’s reasonable request, the Borrower shall designate Information Materials (a) that are either available to the public or do not contain material non-public information with respect to the Borrower, its Subsidiaries, their respective Affiliates or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” (the “Public Information”) and (b) that are not Public Information as “Private Information” (the “Private Information”)(it being understood and agreed that to the extent such litigation Information Materials constitute confidential information, they shall be treated as provided in §18.7). Any material to be delivered pursuant to this §7.4(a), (b), (f) or settlement discussions (i) shall not include attorney-client privileged communicationsbe deemed delivered hereunder upon posting thereof on the ▇▇▇▇▇ Website or on Company’s website on the Internet at the website address ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ (or another website address provided by Company in a written notice to Administrative Agent). Additionally, but shall otherwise include information which any material required to be delivered pursuant to this §7.4 may be confidential or subject otherwise delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Qthe Borrower shall deliver paper copies of any information delivered electronically (other than with respect to §7.4(a) and (b) via posting on the ▇▇▇▇▇ website or Company’s website) to Agent. The Borrower and the Guarantors authorize Agent and Arrangers to disseminate to the Lenders any materials delivered pursuant to the Loan Documents, Form 8-Kincluding without limitation the Information Materials, registration statement through the use of Intralinks, SyndTrak or any other reputable electronic information is filed or furnished dissemination system, and the Borrower and the Guarantors release Agent, the Arrangers and the Lenders from any liability in connection therewith, provided that no information designated by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information as Private Information may be distributed in electronic form a publically accessible format or to any Public Lenders (provided that such electronic form is reasonably acceptable to the further neither Agent). The Agent shall distribute , any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of Arranger nor any information posted thereto or contained thereon and the Agent Lender shall have no any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to any distribution of Public Information in a publicly accessible format or to any Public Lenders unless the same is the result of such Platform or any such information (including any information referred to in Section 8.2 below)Person’s bad faith, except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a by final and nonappealable non-appealable judgment) and all confidential information shall be treated as provided in §18.7. Certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries 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. The Borrower hereby agrees that, upon Agent’s reasonable request, it will use commercially reasonable efforts to identify that portion of the Information Materials that may be distributed to the Public Lenders and that (i) all such Information Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders and the Arrangers to treat such Information Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries, its Affiliates or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Information Materials constitute confidential information, they shall be treated as provided in §18.7); (iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any reputable electronic dissemination system designated “Public Investor” or a similar designation; and (iv) the Agent and the Arrangers shall treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of any reputable electronic dissemination system not designated “Public Investor” or a similar designation.
Appears in 1 contract
Sources: Credit Agreement (CyrusOne Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable(i) within fifteen (15) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or chief accounting officer of REIT, on its behalf, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and (ii) within a reasonable period of time following request therefor, any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicablewithin fifteen (15) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, in the form of Exhibit F K hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §7.16, §8.1(h) and (i) and §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. Borrower shall submit with the Compliance Certificate an Unencumbered Pool Certificate in the form of Exhibit J attached hereto (an “Unencumbered Pool Certificate”) pursuant to which the Borrower shall calculate the amount of the Unencumbered Pool Value and the Unencumbered Pool Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Funds from Operations and Net Operating Income for such fiscal quarter calendar quarter, including, without limitation, Net Operating Income for each of the Unencumbered Properties as Pool Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or chief accounting officer, on its Vice President – Finance behalf, that the information contained in such statement fairly presents the Unencumbered Property Funds from Operations and Net Operating Income, including, without limitation, the Net Operating Income of each of the Unencumbered Properties Pool Properties, for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower REIT and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Unencumbered Pool Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Unencumbered Pool Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Unencumbered Pool Properties for each such calendar quarter and year to date and a consolidated operating statement for the Unencumbered Pool Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent) and (iii) evidence reasonably required by Agent to determine satisfaction with the requirement contained in paragraph (h) of the definition of “Eligible Real Estate” contained in §1.1;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (i) listing the Real Estate owned by REIT, the Borrower and their respective Subsidiaries (or in which REIT, the Borrower or any of their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, and (ii) listing the Indebtedness of REIT, the Borrower and their respective Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerBorrower or REIT;
(fh) promptly following Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and REIT;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which the Borrower or REIT shall file with the SEC;
(hj) upon reasonable request notice of any audits pending or threatened in writing with respect to any tax returns filed by the Agent, Borrower or REIT promptly following notice of such audit;
(k) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesPool Properties following payment thereof;
(il) with respect to any Real Estate that is not later than November 15 of each yearan Unencumbered Pool Property, the Consolidated cash flow projections most recent Appraisal of the Borrower for the next three yearssuch Real Estate promptly upon finalization thereof;
(jm) promptly upon receipt thereof, copies of any and all notices of default under any loan document securing or evidencing a mortgage loan made to the Borrower or any of its Subsidiaries secured by a Lien on Real Estate, if such mortgage loan (i) constitutes Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the aggregate has an outstanding principal balance in excess of $20,000,000.00, or (iii) has been accelerated;
(n) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(o) [Intentionally Omitted.]
(p) from time to time such other financial data and information in the possession of REIT, the Borrower or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against REIT, the Borrower or its any of their respective Subsidiaries and any settlement discussions relating theretothereto (to the extent that disclosure of any such letters, litigation or investigation status or settlement discussions would not waive any applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with shall deliver paper copies thereof to Agent and the SECLenders. If The Borrower authorizes Agent and Joint Lead Arrangers and Bookrunners to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower releases Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 1 contract
Sources: Term Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Financial Statements, Certificates and Information. The Borrower and the Trust will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Trust, the audited Consolidated balance sheet of the Borrower Trust and its Subsidiaries at the end of such year, and the related audited Consolidated statements of income, changes in capital shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or by another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of accounting firm, the Form 10-K of the Borrower Trust filed with the SEC; providedSEC (unless the SEC has approved an extension, however, that in no which event shall any reference the Trust will deliver to any prior the Agent and each of the Banks a copy of the Form 10-Ks or Proxy Statements which may be incorporated by reference within K simultaneously with delivery to the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to AgentSEC), and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower Trust and its Subsidiaries;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) fiscal quarters of the Borrower and the Trust, respectively, copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries and the Trust and its Subsidiaries, respectively, as at the end of such quarter, and the related unaudited Consolidated statements of income income, changes in shareholder’s equity and cash flows for the portion of the Borrower’s and the Trust’s, respectively, fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect which, as to the Borrower and its Subsidiaries for the first three quarters of any fiscal year Trust, may be satisfied provided by delivery of inclusion in the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference Trust for such period provided pursuant to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lendersubsection (c) below), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance and the Trust, respectively, that the information contained in such financial statements fairly presents the financial position of the Borrower such Person and its Subsidiaries on the date thereof (subject to year-end adjustments); provided, however, that unless otherwise requested by the Agent or the Majority Banks, the Borrower shall not be required to deliver the balance sheets, statements or other matters required by this §7.4(b) to the extent the same are incorporated in the balance sheets, statements and other matters delivered to the Banks by the Trust;
(c) as soon as practicable, but in any event not later than fifty-five (55) days after the end of each of the first three (3) fiscal quarters of the Trust in each year, copies of Form 10-Q filed with the SEC (unless the SEC has approved an extension in which event the Trust will deliver such copies of the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than fifty-five (55) days after the end of the first three (3) fiscal quarters of the Borrower, copies of a Consolidated statement of Operating Cash Flow for such fiscal quarter for the Borrower and its Subsidiaries and a statement of Operating Cash Flow for such fiscal quarter for the Borrower and the Unencumbered Borrowing Base Properties, prepared on a basis consistent with the statement furnished pursuant to §6.4 together with a certification by the chief financial or chief accounting officer of the general partner of the Borrower, that the information contained in such statement fairly presents the Operating Cash Flow of the Borrower and its Subsidiaries and the Unencumbered Borrowing Base Properties for such period;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of Trust and of the general partner of the Borrower or its Vice President – Finance in the form of Exhibit F I hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.1, §8.3, §8.7, §8.9, §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Propertytherein, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All incomeWith each Compliance Certificate, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate Borrower shall be accompanied by also deliver a copy of the statement of the Unencumbered certificate (a “Borrowing Base Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification Certificate”) executed by the chief financial officer of the general partner of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income lists each of the Unencumbered Borrowing Base Properties, and certifies that all Unencumbered Borrowing Base Properties for so listed fully qualify as such under the applicable criteria in this Agreement, lists any additions or removals of Unencumbered Borrowing Base Properties during such accounting period, as appropriate, and includes such information as Agent may reasonably require to determine the economic and physical occupancy of said Unencumbered Borrowing Base Properties and the aggregate Borrowing Base Availability and the Operating Cash Flow from such Unencumbered Borrowing Base Properties during such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ef) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the SEC or proxy statements sent to the shareholders stockholders of the Trust or the partners of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)[Intentionally Omitted];
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties[Intentionally Omitted];
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years[Intentionally Omitted];
(j) [Intentionally Omitted];
(k) promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and the Trust;
(l) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, each of the following with respect to each acquisition of an interest in a Subsidiary: (i) the name and structure of the Subsidiary, (ii) a description of the property owned by such Subsidiary, and (iii) such other information as the Agent may reasonably request;
(m) simultaneously with the delivery of the financial statement referred to in subsection (a) above, a statement (i) listing the Real Estate owned by the Borrower, the Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (or in which the Borrower, the Guarantors or their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower, the Guarantors or their respective Subsidiaries and Unconsolidated Affiliates (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower, the Guarantors or their respective Subsidiaries or Unconsolidated Affiliates which are under “development” (as used in §8.9) and providing a brief summary of the status of such development;
(n) not later than thirty (30) days prior to the end of each fiscal year of the Borrower a budget and business plan for the next fiscal year and a budget for each Unencumbered Borrowing Base Property;
(o) as soon as practicable, but in any event not later than one hundred (100) days after the end of each fiscal year of the Borrower, the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries at the end of such year, and the related unaudited consolidated statements of income, changes in shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by 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 (provided, however, the Borrower shall not be required to provide such statements in the event that such statements would be substantially similar to the consolidated statements provided by the Trust);
(p) promptly upon becoming aware of a change in any credit rating (including the Credit Rating) given by a Rating Agency or any announcement that any rating is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by a Rating Agency, written notice to Agent of such change, announcement or action; and
(q) from time to time such other financial data and information in the possession of the Borrower Borrower, the Guarantors or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesthe Guarantors) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect Banks provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-KBanks upon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrower and the Trust shall deliver paper copies thereof to Agent and the Banks. Borrower with and the SEC. If Trust authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon Borrower and the Trust release Agent shall have no and the Banks from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 1 contract
Sources: Unsecured Master Loan Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Lenders
(a) as soon as practicableavailable, but in any event not later than within ninety (90) days after the end of each fiscal year Fiscal Year of the Borrower, commencing with a copy of the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year, year and the related audited Consolidated consolidated statements of incomeoperations, changes in capital stockholders’ equity and cash flows for such year, each setting forth in each case in comparative form form, the figures for the previous fiscal year and all such statements to be in reasonable detailyear, prepared in accordance with GAAPreported on without a “going concern” or like qualification or exception, and accompanied by an auditor’s report prepared without or qualification as to arising out of the scope of the audit audit, by a "Big Four" accounting firm Deloitte & Touche LLP or another any other nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesaccounting firm;
(b) as soon as practicableavailable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including of the fourth quarter) first three Fiscal Quarters of each Fiscal Year of the Borrower, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter, Fiscal Quarter and the related unaudited Consolidated consolidated statements of income operations, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for such Fiscal Quarter and the portion of the Borrower’s fiscal year then elapsedFiscal Year through the end of such Fiscal Quarter, all setting forth in reasonable detail and prepared each case in accordance with GAAP (comparative form, the foregoing with respect to the Borrower and its Subsidiaries figures for the first three quarters of any fiscal year may be satisfied previous year, certified by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof as being fairly stated in all material respects (subject to normal year-end audit adjustments);
(c) simultaneously promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) as soon as available, but in any event within sixty (60) days after the beginning of each Fiscal Year of the Borrower to which such budget relates, an annual operating budget of Borrower and its Subsidiaries, on a consolidated basis, as adopted by the Board of Directors of the Borrower;
(e) concurrently with the delivery of the consolidated financial statements referred to in subsection §8.4(a), a letter from the independent certified public accountants reporting on such financial statements stating that in making the examination necessary to express their opinion on such financial statements no knowledge was obtained of any Default or Event of Default, except as specified in such letter;
(f) concurrently with the delivery of the financial statements referred to in subsections (a§8.4(a) and (b) above), a statement certificate of the principal financial or accounting officer of the Borrower in substantially the form of Exhibit C hereto (a “Compliance Certificate”) certified by (i) stating that, to the chief financial officer best of such officer’s knowledge, each of the Borrower and its Subsidiaries has observed or performed all of its Vice President – Finance in the form of Exhibit F hereto (or in such covenants and other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants agreements, and satisfied every applicable condition, contained in Section 9.1 this Credit Agreement, the Tranche A Notes and the other covenants described Loan Documents to be observed, performed or satisfied by it, and that such officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (ii) showing in detail as of the end of the related fiscal period the figures and calculations supporting such statement in respect of §10, clause (h) of §9.3, clause (c) of §9.4 and §9.5.2(e), (iii) if not specified in the financial statements delivered pursuant to this §8.4, specifying on a consolidated basis the aggregate amount of interest paid or accrued by the Borrower and its Subsidiaries, and the aggregate amount of depreciation, depletion and amortization charged on the books of the Borrower and its Subsidiaries, during such accounting period, and (iv) showing in detail as of the end of the related fiscal period the Fixed Charge Coverage Ratio, the Leverage Ratio, the Total Capitalization Ratio and Consolidated Net Worth of the Borrower and its Subsidiaries and the calculations supporting such statement and stating the Applicable Margin and commitment fee payable as a result of such Total Capitalization Ratio.
(g) promptly upon receipt thereof, copies of all final reports submitted to the Borrower by independent certified public accountants in connection with each annual, interim or special audit of the books of the Borrower made by such accountants, including, without limitation, a listing of each Unencumbered Propertyany final comment letter submitted by such accountants to management in connection with their annual audit; and
(h) promptly, such additional financial and (if applicable) setting forth reconciliations other information as any Lender may from time to reflect material changes in GAAP since the Effective Datetime reasonably request. All income, expense financial statements shall be prepared in reasonable detail in accordance with GAAP (provided that interim statements may be condensed and value associated may exclude detailed footnote disclosure) applied consistently throughout the periods reflected therein and with Real Estate prior periods (except as concurred in by such accountants or other Investments disposed of or added during any quarter will be eliminated from or added toofficer, as the case may be, and disclosed therein and except that interim financial statements need not be restated for changes in accounting principles which require retroactive application, and operations which have been discontinued (as defined in Accounting Principles Board Opinion No. 30) during the current year need not be shown in interim financial statements as such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter either for the Unencumbered Properties as a groupcurrent period or comparable prior period). In the event the Borrower changes its accounting methods because of changes in GAAP, or any change in GAAP occurs which increases or diminishes the protection and otherwise in form and substance reasonably satisfactory coverage afforded to the AgentLenders under current GAAP accounting methods, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents Administrative Agent, as the Unencumbered Property Net Operating Income case may be, may request of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery other parties to this Agreement an amendment of the financial statements referred covenants contained in this Credit Agreement to reflect such changes in clause (a) above, GAAP and to provide the statement of all contingent liabilities involving amounts of $1,000,000.00 Lenders with protection and coverage equivalent to that existing prior to such changes in accounting methods or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of othersGAAP, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders each of the Borrower;
, the Administrative Agent and the Lenders agree to consider such request in good faith. Documents required to be delivered pursuant to §8.4(a), (fb) promptly after a Rating Agency or (c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall have announced a change in the rating established or be deemed to have been established for delivered on the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
date (i) not later than November 15 of each year, the Consolidated cash flow projections of on which the Borrower for posts such documents, or provides a link thereto on the next three years;
Borrower’s website on the Internet at the website address listed on Schedule 1; or (jii) from time to time on which such other financial data and information in documents are posted on the possession of the Borrower Borrower’s behalf on an Internet or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reportsintranet website, if any, that 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: the Borrower shall have filed with deliver paper copies of such documents to the Commission (Administrative Agent or any Governmental Authority substituted therefor) 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. 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 national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything event shall have no responsibility to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished monitor compliance by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SECrequest for delivery, such information and each Lender shall be deemed delivered solely responsible for requesting delivery to the Agent upon the Agent's receipt it or maintaining its copies of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentdocuments.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to the Administrative Agent and any Lender upon request of such Lender (made through the Administrative Agent):
(a) as soon as practicable, but within five (5) days after the filing with the Securities and Exchange Commission of the Parent’s Annual Report on Form 10-K with respect to each fiscal year (and in any event not later than ninety within one hundred (90100) days after the end of each such fiscal year year), the consolidated balance sheets of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower Group as at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital income and cash flows for such yearof the Consolidated Group, each setting forth in comparative form the figures for the previous fiscal year and year, all such financial statements to be in reasonable detail, prepared in accordance with GAAP, GAAP and audited and accompanied by an auditor’s a report prepared without and opinion of the Accountants, which report and opinion shall state that such financial statements present fairly the financial position of the Consolidated Group and shall not be subject to any qualification as to going concern or the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesaudit;
(b) as soon as practicable, but within five (5) days after the filing with the Securities and Exchange Commission of the Parent’s Quarterly Report on Form 10-Q with respect to each of the first three (3) fiscal quarters of each fiscal year (and in any event not later than forty-five (45) within 55 days after the end of each such fiscal quarter (including the fourth quarter) of the Borrower), copies of the unaudited Consolidated consolidated balance sheet sheets of the Borrower Consolidated Group as at the end of such fiscal quarter, and the related consolidated statements of income and cash flows of the Consolidated Group as at the end of such quarter, subject to normal year-end adjustments and the related unaudited Consolidated statements absence of income and cash flows for the portion of the Borrower’s fiscal year then elapsedfootnotes, all in reasonable detail and prepared in accordance with GAAP (subject to normal year-end adjustments and the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters absence of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; providedfootnotes, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief CFO that the consolidated financial officer statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrower or its Vice President – Finance that Consolidated Group as at the information contained in such financial statements fairly presents the financial position close of the Borrower and its Subsidiaries business on the date thereof (subject to year-end adjustments)and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) Certificate certified by the chief financial officer CFO that the Consolidated Group is in compliance with the covenants contained in Sections 7.14 and 7.15 as of the Borrower or its Vice President – Finance in end of the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) applicable period setting forth in reasonable detail computations evidencing compliance such compliance; provided, that if the Borrowers shall at the time of issuance of such certificate or non-compliance (as at any other time obtain knowledge of any Default or Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrowers shall include in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate certificate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory deliver forthwith to the Agent, together Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodrespect thereto;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) abovewith, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingpromptly following, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;Borrowers; and
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(je) from time to time time, such other financial data and other information in the possession (including accountants’ management letters and a copy of the Borrower or its Subsidiaries (including without limitation auditorsBorrowers’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries annual budget and projections for any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesfiscal year) as the Agent Lenders may reasonably request. Information concerning Borrowers shall be deemed to have delivered reports and other information referred to in clauses (a), (b), and (d) of this Section 6.04 when (A) such litigation reports or settlement discussions shall not include attorney-client privileged communicationsother information have been posted on the Internet website of the Securities and Exchange Commission (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) or on Parent’s Internet website as previously identified to the Administrative Agent and Lenders and (B) Parent or Borrowers have notified the Administrative Agent by electronic mail of such posting. The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall otherwise include not be obligated to, make available to the Lenders materials and/or information which provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak 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 the Parent or its Subsidiaries, or the respective securities of any of the foregoing, and who may be confidential or subject to a workengaged in investment and other market-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower related activities with respect to such matters as has been Persons’ securities. The Borrowers hereby agree that (w) all Borrower Materials that are to be made prior available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the Effective Dateword “PUBLIC” shall appear prominently on the first page thereof; and
(kx) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that by marking Borrower shall have filed with Materials “PUBLIC,” the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 Borrowers shall be deemed delivered to have authorized the Agent Administrative Agent, the Arrangers and the Lenders if to treat such Form 10Borrower Materials as not containing any material non-K, Form 10-Q, Form 8-K, registration statement or other public information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information although it may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, sensitive and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwiseproprietary) with respect to such Platform the Borrowers or any such information their securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (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 Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower and the Guarantors will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Trust, the audited Consolidated balance sheet of the Borrower Trust and its Subsidiaries, at the end of such year, and the related audited Consolidated statements of income, changes in capital shareholder’s equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of accounting firm, the Form 10-K of the Borrower Trust filed with the SEC; providedSEC (unless the SEC has approved an extension, however, that in no which event shall any reference the Trust will deliver to any prior the Agent and the Banks a copy of the Form 10-Ks or Proxy Statements which may be incorporated by reference within K simultaneously with delivery to the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to AgentSEC), and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower and its Subsidiariesthe Guarantors;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) fiscal quarters of the Trust, copies of the unaudited Consolidated Subsidiaries balance sheet of the Borrower and its Subsidiaries and the Trust and its Subsidiaries, respectively, as at the end of such quarter, and the related unaudited Consolidated statements of income income, changes in shareholder’s equity and cash flows for the portion of the Borrower’s and Trust’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance and the Trust, respectively, that the information contained in such financial statements fairly presents the financial position of the Borrower such Person and its Subsidiaries on the date thereof (subject to year-end adjustments); provided, however, that unless otherwise requested by the Agent or the Majority Banks, the Borrower shall not be required to deliver the balance sheets, statements or other matters required by this §7.4(b) to the extent the same are incorporated in the balance sheets, statements and other matters delivered to the Banks by the Trust;
(c) simultaneously with as soon as practicable, but in any event not later than fifty-five (55) days after the delivery end of each of the financial fiscal quarters, an updated Rent Roll and operating statements referred with respect to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Collateral Property, such statements and (if applicable) setting forth reconciliations reports to reflect material changes be in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously promptly after they are filed with the delivery of the financial statements referred to in clause (a) aboveInternal Revenue Service, the statement copies of all contingent liabilities involving amounts of $1,000,000.00 or more annual federal income tax returns and amendments thereto of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);Guarantors; and
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries the Guarantors (including without limitation auditors’ ” management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower Borrower, the Guarantors or its their respective Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect Banks provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-KBanks upon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrower and the Guarantors shall deliver paper copies thereof to Agent and the Banks. Borrower with and the SEC. If Guarantors authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon Borrower and the Guarantors release Agent shall have no and the Banks from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 1 contract
Sources: Bridge Loan Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will promptly, after receipt thereof, deliver to the Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year (or, if earlier, within fifteen (15) days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of the Borrower, commencing with (i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified without qualification as to the scope of the audit by a "Big Four" accounting firm or another Ernst & Young LLP, any nationally recognized firm acceptable of independent certified public accountants or by other independent certified public accountants reasonably satisfactory to the Administrative Agent and (ii) a statement certified by the foregoing with respect to chief financial officer or the Borrower may be satisfied by delivery of the Form 10-K treasurer of the Borrower filed in substantially the form of Exhibit B attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information covenants contained in any such prior filings be deemed delivered §8 hereof and (if applicable) reconciliations to Agent), and any other information reflect changes in GAAP since the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesBalance Sheet Date;
(b) 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 quarter quarters of each fiscal year (including or, if earlier, within ten (10) days after the fourth quarterdate required to be filed with the Securities and Exchange Commission without giving effect to extensions) of the Borrower, (i) copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or the treasurer of the Borrower or its Vice President – Finance that to the best of the Borrower’s knowledge, 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)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or claimed Event of Termination under any Material Securitization Transaction the result of which would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the repurchase of the receivables sold thereunder, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect thereto as the Administrative Agent shall reasonably request; and
(e) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the Securities Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. All Confidential Information concerning the Borrower supplied by the Borrower to the Lenders pursuant to the terms hereof will be held in confidence by the possession Lenders and the Lenders shall not disclose such Confidential Information except as permitted by §25 of this Credit Agreement. Documents required to be delivered pursuant to this §6.4 (to the extent any such documents are included in materials otherwise filed with the United States 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 ▇▇▇▇▇▇▇.▇▇▇; 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, each Issuing Bank and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent, any Issuing Bank or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, such Issuing Bank or such Lender and (ii) the Borrower shall notify the Administrative Agent (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. The Administrative Agent shall have no obligation to request the delivery or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Co-Lead Arrangers will make available to the Lenders and the Issuing Banks 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 (ii) 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 Subsidiaries securities) (including without limitation auditors’ management letterseach, status of litigation or investigations against a “Public Lender”); provided, however, that each Public Lender shall identify at least one employee who may receive material non-public information with respect to the Borrower or its Subsidiaries securities. The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any settlement discussions relating thereto, property inspection and environmental reports and material non-public information as with respect to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariessecurities for purposes of United States Federal and state securities laws (provided, however, (x) to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (y) to the Agent may reasonably request. Information concerning extent such litigation or settlement discussions shall Borrower Materials are not include attorney-client privileged communicationsmarked “PUBLIC” and posted on the Platform, but shall otherwise include information which may such Borrower Materials will also be confidential or subject to the additional confidentiality provisions included on the Platform); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a work-product privilege so that portion of the Platform designated “Public Investor;” and (D) the Administrative Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8Co-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 Lead Arrangers shall be deemed delivered entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Agent Platform not designated “Public Investor” and the Administrative Agent, the Issuing Banks and the Lenders if such Form 10-Kagree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered under no obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other LendersBorrower, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether sounding in tort, contract or otherwise) with respect to such Platform arising out of the Borrower’s or any such information (including any information referred to in Section 8.2 below)the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such liability results losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Agent Borrower, any Lender, any Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as determined by a court of competent jurisdiction in a final and nonappealable judgmentopposed to direct or actual damages).
Appears in 1 contract
Sources: Credit Agreement (Staples 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 one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated and consolidating statement of income, changes in capital income and consolidated statement of cash flows flow 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, audited and accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K ability of the Borrower filed with or any of its Subsidiaries to continue as going concerns, by Ernst & Young, LLP or other independent certified public accountants reasonably satisfactory to the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of the Borrower and CLIF, copies of the unaudited Consolidated consolidated balance sheet of (i) the Borrower and its Subsidiaries and (ii) CLIF, in each case as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s or CLIF’s, as the case may be, fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries or CLIF’s, as the case may be, on the date thereof (subject to normal year-end adjustmentsadjustments made in accordance with GAAP and the absence of footnotes);
(c) 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 Borrower in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial naturenature filed with the Securities and Exchange Commission;
(e) (i) within fifteen (15) Business Days after the end of each calendar month, reports (ii) within five (5) Business Days of the Drawdown Date of each Revolving Credit Loan or proxy statements sent of the date of issuance, extension or renewal of each Letter of Credit, (iii) within five (5) Business Days prior to the shareholders date of any removal or sale of any assets from the BorrowerBorrowing Base other than asset sales made in the ordinary course of business in an aggregate amount not to exceed $1,000,000, and (iv) at each other time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or Drawdown Date or other date so requested by the Agent;
(f) promptly after as soon as available (but in no event later than March 31st of each year), a Rating Agency shall have announced a change in copy of the rating established or deemed to have been established annual consolidated budget for the Index Debt, written notice of such rating changeBorrower and its Subsidiaries for each fiscal year;
(g) promptly upon together with the filing hereofquarterly financials delivered pursuant to §8.3(b), copies a separate calculation of all registration statements (other than the exhibits thereto utilization rate for the Eligible Containers as a group and any registration statements on Form S-8 or its equivalent);the Eligible Chassis as a group and a separate weighted average calculation of the per diem rate for the preceding fiscal quarter for the Eligible Containers as a group and the Eligible Chassis as a group; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower and Guarantor will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Guarantor, the audited Consolidated consolidated balance sheet of the Borrower Guarantor and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital shareholder's equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by a Deloitte & Touche, or by another "Big FourSix" accounting firm or another nationally recognized firm acceptable firm, the Form 10-K filed with the SEC (unless the SEC has approved an extension, in which event Guarantor will deliver to the Agent (and each of the foregoing with respect to the Borrower may be satisfied by delivery Banks a copy of the Form 10-K simultaneously with delivery to the SEC), a statement of the Borrower filed with Borrower's taxable net income for the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)fiscal year, and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower Guarantor and its Subsidiaries;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Borrower and Guarantor, respectively, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries and the Guarantor and its Subsidiaries, respectively, as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, changes in shareholder's equity and cash flows for the portion of the Borrower’s 's and Guarantor's, respectively, fiscal year then elapsed, and a statement showing the aging of the receivables and payables for the Mortgaged Properties, all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles (the foregoing with respect which, as to the Borrower and its Subsidiaries for the first three quarters of any fiscal year Guarantor, may be satisfied provided by delivery of inclusion in the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference Guarantor for such period provided pursuant to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lendersubsection (c) below), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.Guarantor,
Appears in 1 contract
Sources: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. The Parent and the Borrowers will deliver to the Administrative Agent and each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated balance sheet of the Borrower Parent and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s report prepared certified without qualification as to the scope by PricewaterhouseCoopers LLP or by other independent certified public accountants of the audit by recognized national standing, which statements shall include a "Big Four" accounting firm footnote which identifies any Default or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery Event of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Parent, copies of the unaudited Consolidated consolidated balance sheet of the Borrower Parent and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s Parent's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial officer or accounting officers of each of the Borrower or its Vice President – Finance Borrowers and the Parent that the information contained in such financial statements fairly presents the financial position of the Borrower Parent and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with promptly upon the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial officer or accounting officers of the Borrower or its Vice President – Finance Borrowers and the Parent in substantially the form of Exhibit F EXHIBIT C attached hereto (i) stating no Default or Event of Default exists and is continuing, (ii) stating the Borrowers and the Parent are in compliance with SECTION 8.6(c) hereof, (iii) reaffirming the representations and warranties contained herein including, without limitation, SECTION 7.21, or if any such other form representation or warranty is stated to have been made solely as the Agent may approve from time to timeof an earlier date, such representation or warranty is reaffirmed as if made on such date and (iv) setting forth in reasonable detail computations (A) calculating the Leverage Ratio for purposes of determining the Applicable Margin, (B) evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, SECTION 10 hereof and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with promptly upon the filing or mailing thereof, copies of all material information of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the BorrowerParent;
(e) on December 1 of each year an annual operating and capital budget for the following year in a form reasonably acceptable to the Administrative Agent;
(f) promptly after on each June 30 and January 31 of each calendar year of the Parent, or more frequently as determined by the Administrative Agent or the Majority Banks, the Borrowers will, at their own expense, obtain and deliver to the Administrative Agent and the Banks appraisal reports in form and substance and from appraisers reasonably satisfactory to the Administrative Agent (each such report herein, an "Appraisal"), stating the then current fair market values of the Vessels subject to a Rating Agency Vessel Mortgage, PROVIDED, THAT, (i) the Administrative Agent may, upon notice to the Borrowers, obtain such Appraisals and the cost of such Appraisals shall be paid by the Borrowers and (ii) unless a Default or Event of Default shall have announced a change in occurred and be continuing, the rating established or deemed Borrowers shall not be obligated to have been established pay for the Index Debt, written notice of such rating change;more than two Appraisals during any one calendar year; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Bank may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Trico Marine Services Inc)
Financial Statements, Certificates and Information. The 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 BorrowerParent, commencing with (i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower 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 audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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 accompanied by an auditor’s report prepared related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the scope ability of the audit Parent, Mont Re or any of their Subsidiaries to continue as going concerns, by a "Big Four" accounting firm PricewaterhouseCoopers or another nationally recognized firm acceptable any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the Agent (the foregoing with respect to the Borrower may be satisfied by delivery consolidated balance sheet of the Form 10-K Mont Re and its Subsidiaries and the consolidating balance sheet of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis 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 fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of the Parent, (i) copies of the unaudited Consolidated consolidated balance sheet of the Borrower 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 unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow and consolidating statement of income for the portion of the BorrowerParent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Parent that the information contained in such financial statements fairly presents the financial position of the Borrower Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Mont Re and its Subsidiaries and the unaudited consolidating balance sheet of the 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 Mont 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 Mont Re that the information contained in such financial statements fairly presents the financial position of the 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 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 Borrowers will provide copies of such sections to the Administrative Agent;
(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”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §8 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income;
(e) promptly upon knowledge thereof, expense any announcement by A.M. Best & Company, Inc. of any change in or change in the outlook for a Financial Strength Rating of any 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 Mont Re and value associated with Real Estate or each other Investments disposed of or added during any quarter will be eliminated from or added toInsurance Subsidiary, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer jurisdiction of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income domicile of the Unencumbered Properties for such periodany Insurance Subsidiary;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(eg) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)Borrowers;
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) 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 Borrowers shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Information concerning Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such litigation or settlement discussions shall not include attorney-client privileged communications, but shall documents are included in materials otherwise include information which filed with the Securities and Exchange Commission) may be confidential delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Mont Re posts such documents, or subject to provides a work-product privilege so that link thereto on Mont Re’s website on the Agent and Internet at the Lenders receive website address listed on Schedule 14.6; or (ii) on which such documents are posted on the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reportsBorrowers’ behalf on an Internet or intranet website, if any, that Borrower 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 Borrowers shall have filed with deliver paper copies of such documents to the Commission (Administrative Agent or any Governmental Authority substituted thereforLender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) Mont Re shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any national securities exchangesuch documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., including each Form 8-K, Form 10-K and Form 10-Q filed with the Commissionsoft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the contrary 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 this Section 8.1 or in Section 8.2any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 and each Lender shall be deemed delivered solely responsible for requesting delivery to it or maintaining its copies of such documents. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Agent Lenders and the Lenders if such Form 10-KFronting Bank materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished “Borrower Materials”) by posting the Borrower with Materials on IntraLinks or another similar electronic system (the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) and (includingb) certain of the Lenders may be “public-side” Lenders (i.e., without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time Lenders that do not wish to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any receive material non-public information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to either Borrower or its securities) (each, a “Public Lender”). 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 Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Platform Borrower Materials as not containing any material non-public information with respect to either Borrower or any such information its securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrower Materials constitute Information, they shall be treated as set forth in §14.12); (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 determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Investor.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Loan Parties will deliver (aor cause to be delivered) to the Administrative Agent:
(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 Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements of income, changes in capital income and statements of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K ability of the Borrower filed with 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 SECAdministrative Agent; providedand
(ii) as soon as practicable, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained 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 prior filings be deemed delivered to Agent)year, and the related audited statements of income and statements of cash flow 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 qualification 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 information independent certified public accountants reasonably satisfactory to the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAdministrative Agent;
(bi) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of the Borrower and its Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements of income and statements of cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) upon the reasonable request of the Administrative Agent, the Borrower shall provide 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 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 in subsection (b), to year-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 Borrower in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income;
(i) simultaneously with the filing or mailing thereof, expense copies of all public filings containing material of a financial nature filed with the Securities and value associated Exchange Commission or with Real Estate 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 filing of such reports on ▇▇▇▇▇ 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 Investments disposed public correspondence received from the Securities 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 added during any quarter will of its respective Subsidiaries which could reasonably be eliminated from 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 added toother date so requested by the Administrative Agent, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(dg) contemporaneously simultaneously with the delivery of the financial statements referred to in clause subsection (af) above, an equipment report with respect to the statement 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 all contingent liabilities involving amounts Eligible Railcars, type(s) of $1,000,000.00 or more of Eligible Railcars owned by the Borrower and its Subsidiaries which are not reflected 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 or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of othersstatements, and obligations 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 reimburse which the issuer in respect Eligible Railcars are subject, identification of any letters each lease of credit);
(e) contemporaneously with an Eligible Railcar that is then on lease to a Permitted Mexican Lessee and the filing or mailing thereof, copies then unsecured debt credit rating of each such Permitted Mexican Lessee and a listing of all material Tank Railcars, the Net Book Value or Finance Lease Value, as the case may be, of a financial nature, reports or proxy statements sent to each such Tank Railcar owned by the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of Borrower and each such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);Tank Railcar that is Flammable Cargo Tank Railcar.
(h) upon reasonable request by within one hundred twenty (120) days after the Agentend of each fiscal year, evidence reasonably satisfactory to Agent (x) projections of the timely payment annual operating budget of all real estate taxes CAI on a consolidated basis, balance sheets and cash flow statements for the Unencumbered Properties;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) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of such litigation Loan Party or settlement discussions shall not include attorney-client privileged communicationsany of its Subsidiaries hereunder (collectively, but shall otherwise include information which “Borrower Materials”) by posting the Borrower Materials on DebtX or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be confidential “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or subject their securities) (each, a “Public Lender”). 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 work-product privilege so 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 Agent word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” such Loan Party shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer, the Swing Line Lender and the Lenders receive the same level of disclosure from the to treat Borrower Materials as not containing any material non-public information with respect to such matters as has been made prior Loan Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the Effective Dateextent Borrower Materials constitute Information, they shall be treated as set forth in §16.4); and
(ky) promptly upon their becoming available, copies all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of all registration statements, filings, the Platform designated “Public Investor;” and regular periodic reports, if any, (z) the Administrative Agent and the Arranger shall be entitled to treat the Borrower Materials that Borrower shall have filed with are not marked “PUBLIC” as being suitable only for posting on a portion of the Commission (Platform not designated “Public Investor.” Notwithstanding the foregoing or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2contained herein, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 no Loan Party shall be deemed delivered under any obligation to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by ▇▇▇▇ the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety one hundred five (90105) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Holdings, the audited Consolidated consolidated balance sheet of the Borrower Holdings and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 GAAPGenerally Accepted Accounting Principles, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit consolidated statements certified without qualification by a "Big Four" accounting firm Deloitte & Touche LLP or another nationally recognized firm acceptable by other independent certified public accountants satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five within thirty (4530) days after the end of each month in each fiscal quarter (including the fourth quarter) year of the BorrowerHoldings, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated monthly consolidated financial statements of income Holdings and cash flows its Subsidiaries for the portion of the Borrower’s fiscal year then elapsedsuch month, all in reasonable detail and each prepared in accordance with GAAP (the foregoing with respect to the Borrower Generally Accepted Accounting Principles, and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery each including a comparison of the Form 10-Q of the Borrower filed current figures with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information figures contained in any the Borrowers' business plan for such prior filings be deemed delivered to Lender)period, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Holdings that the information contained in such financial statements fairly presents the financial position condition of the Borrower Holdings and its Subsidiaries on the date thereof (subject to year-end adjustments), provided that for the months of March, June, September and December, the above described financial statements shall be delivered within 45 days of the end of such month;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) (with respect to the end of each calendar quarter) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Holdings in substantially the form of Exhibit F G hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 12 and (if applicable) setting forth reconciliations to reflect material changes in GAAP Generally Accepted Accounting Principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;Holdings; and
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(je) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status letters of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariessubstance) as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Russell-Stanley Holdings 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 within one hundred five (90105) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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, all certified and accompanied reported on by an auditor’s report prepared PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing, without a "going concern" or like qualification or exception as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable such audit, to the Agent (effect that such consolidated financial statements present fairly in all material respects the foregoing with respect to the Borrower may be satisfied by delivery financial condition and results of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis operations of the Borrower and its SubsidiariesSubsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) as soon as practicable, but in any event not later than forty-five within sixty (4560) days after the end of each of the first three fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F D hereto (or in such other form as the Agent may approve from time to timea "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 Sections 9.1, 9.5.2, and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with promptly after the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all S-3 registration statements (other than the exhibits thereto thereto) and any registration statements reports on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form Forms 10-K and Form 10-Q which the Borrower has filed with the Securities and Exchange Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.; and
Appears in 1 contract
Sources: Revolving Credit Agreement (Lexmark International Inc /Ky/)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but available and in any event not later than within ninety (90) days after the end of each fiscal year of the Borrowercalendar year, commencing with the fiscal year ending December 31, 2021, the an audited Consolidated consolidated balance sheet of the Borrower at Parent and its Subsidiaries as of the end of such year, year and the related audited Consolidated consolidated statements of income, changes in capital shareholders’ equity and cash flows for such year, each setting forth in each case in comparative form the figures for the previous fiscal year and year, all certified by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing, with such statements certification to be in reasonable detail, prepared in accordance with GAAP, free of exceptions and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm qualifications not acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesRequired Lenders;
(b) as soon as practicable, but available and in any event not later than within forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated a consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such quarter and the related statement of income and statement of cash flows for such quarter and for the portion of the year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the related unaudited Consolidated statements of income and cash flows for the corresponding portion of the Borrower’s fiscal year then elapsedprevious year, all in reasonable detail certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification consistency by the chief financial officer officer, controller or treasurer of the Borrower or its Vice President – Finance 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)Parent;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or controller of the Borrower or its Vice President – Finance Parent in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing ). Calculations of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. Parent shall submit with the Compliance Certificate a Unencumbered Asset Certificate in the form of Exhibit E hereto (a “Unencumbered Asset Certificate”) pursuant to which Parent shall calculate the amount of the Unencumbered Asset Availability as of the end of the immediately preceding fiscal quarter, list the Subject Properties and certify that each Subject Property included therein and in the calculation of the Unencumbered Asset Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Consolidated Net Operating Income for such fiscal quarter for each of the Unencumbered Properties as Subject Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer officer, controller or treasurer of the Borrower or its Vice President – Finance Parent that the information contained in such statement fairly presents in all material respects the Unencumbered Property Consolidated Net Operating Income of the Unencumbered Properties for such periodperiods. Such Unencumbered Asset Certificate shall specify whether there are any defaults under leases at a Subject Property;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause subsections (a) and (b) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more (i) a Rent Roll for each of the Borrower Subject Properties, and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, a combined Rent Roll for all guaranties, endorsements and other contingent obligations in respect of the indebtedness Subject Properties and a summary thereof in form satisfactory to Agent as of othersthe end of each calendar quarter (including the fourth calendar quarter in each year) and (ii) an operating statement for each of the Subject Properties for each such quarter and year to date, a consolidated operating statement for the Subject Properties for each such quarter and year to date, and obligations a balance sheet for the Unencumbered Property Subsidiary which owns or leases any Subject Property as at the end of the most recently ended calendar quarter (such statements, balance sheets and reports to reimburse be in form reasonably satisfactory to Agent), together with a certification by the issuer chief financial officer, controller or treasurer of Parent that the information contained therein is true, correct and complete in respect of any letters of credit)all material respects;
(e) contemporaneously with upon the filing or mailing thereofrequest of the Agent, copies of all material of a financial naturestatements, reports or proxy statements sent to the shareholders of the BorrowerParent;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereofrequest of the Agent, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and annual, quarterly, monthly or special (8-K) reports which Parent or Borrower shall file with the SEC; provided that, in the case of annual and quarterly reports on Forms 10-K and 10-Q, respectively, such reports shall be deemed to be delivered hereunder if posted on the Parent’s website;
(g) a completed and executed Beneficial Ownership Certification upon request by the Agent or any Lender if Agent or such Lender determines that it is required by law to obtain such certification;
(h) upon reasonable request any notice received by the AgentBorrower, evidence reasonably satisfactory to Agent any Guarantor or any Unencumbered Property Subsidiary of (A) any pending, threatened or contemplated eminent domain proceedings against (i) any of the timely payment Subject Properties or (ii) any other Real Estate which may, in the case of all real estate taxes this clause (ii), individually or in the aggregate have any Material Adverse Effect, and (B) any past due or delinquent assessment or other sum due on account of any PACE Loan on a Subject Property or any pending or threatened proceeding purporting to foreclose on a lien for any PACE Loan assessments or exercise any other remedy with respect to any PACE Loan against any of the Unencumbered Subject Properties;; and
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower Borrower, each Guarantor or its their respective Subsidiaries (including including, without limitation limitation, auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower Borrower, any Guarantor or its Subsidiariesany Unencumbered Property Subsidiary, information with respect to any PACE Loans on a Subject Property (including, without limitation, information regarding the improvements financed with the proceeds of such PACE Loans, copies of any reporting or other financial information provided to any lender, servicer or any Governmental Authority on account of such PACE Loans, and evidence of payment of assessments due and payable under such PACE Loans)) as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions The Borrower shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that reasonably cooperate with the Agent and in connection with the Lenders receive publication of certain materials and/or information provided by or on behalf of Borrower. Documents required to be delivered pursuant to the same level Loan Documents shall be delivered by or on behalf of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if (collectively, “Information Materials”) pursuant to this Section. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Lenders provided that such Form 10-Kmaterial is in a format reasonably acceptable to Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any and such information is not filed or furnished by the Borrower with the SEC, such information material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of Agent, ▇▇▇▇▇▇▇▇ and Parent shall deliver paper copies thereof to Agent upon and the Agent's receipt Lenders. ▇▇▇▇▇▇▇▇ and Guarantors authorize Agent to disseminate any such materials, including without limitation the Information Materials through the use of such Intralinks, SyndTrak or any other electronic information from the Borrower dissemination system (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agentan “Electronic System”). Any such Electronic System is provided “as is” and “as available.” The Agent shall distribute do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in any notice, demand, communication, information or other material provided by or on behalf of Borrower that is distributed over or by any such non-SEC filed Electronic System (“Communications”). No warranty of any kind, express, implied or furnished information to the other Lendersstatutory, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlineany warranty of merchantability, IntraLinks fitness for a particular purpose, non-infringement of third-party rights or such freedom from viruses or other electronic platforms as code defects, is made by Agent in connection with the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform Communications or the accuracy Electronic System. In no event shall the Agent, or completeness any of its directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any information posted thereto kind, including, without limitation, direct or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lenderindirect, Borrower special, incidental or other Person consequential damages, losses or expenses (whether sounding in tort, contract or otherwise) with respect arising out of the Borrower’s, any Guarantors’, the Agent’s transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, and the Lenders from any liability in connection therewith, except as to such Platform any of the Agent, or any Lender for any actual damages (but specifically excluding any special, incidental, consequential or punitive damages) to the extent arising from the Agent’s, or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the ▇▇▇▇▇▇’s own gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods. Borrower acknowledges that certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in a final investment and nonappealable judgment.other market related activities with respect to such Persons’ securities. All of the Information Materials delivered by Borrower hereunder shall be deemed to
Appears in 1 contract
Financial Statements, Certificates and Information. The 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 Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated consolidated balance sheet of the Borrower Borrowers and their Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of any of the audit Borrowers or any of their Subsidiaries to continue as going concerns, by a "Big Four" accounting firm PricewaterhouseCoopers or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing Required Lenders, together with respect a written statement from such accountants to the Borrower may be satisfied by delivery effect that they have read a copy of this Credit Agreement, and that, in making the Form 10-K examination necessary to said certification, they have obtained no knowledge of the Borrower filed with the SEC; providedany Default or Event of Default, howeveror, that if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall such statement any such information contained in Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis Default or Event of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of the Borrowers, (i) copies of the unaudited Consolidated consolidated balance sheet of the Borrower Borrowers and their Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for such fiscal quarter and the portion of the Borrower’s Borrowers’ fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year and the comparisons to projections for such period, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect subject to the Borrower year-end adjustments and its Subsidiaries for the first three quarters of any fiscal year may be satisfied footnote information required by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to LenderGAAP), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Borrowers that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower Borrowers and its their Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and footnote information required by GAAP); and (ii) statements of sales and statements of net earnings before interest, taxes, depreciation and amortization expense, on a summarized Restaurant-by-Restaurant basis, for each Restaurant operated by any of the Borrowers or their Subsidiaries, setting forth in each case in comparative form the statements for the corresponding period or periods of the prior fiscal year and a comparison to the projections for such period, such statements to be in a form satisfactory to the Required Lenders;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrowers, unaudited monthly consolidated financial statements of the Borrowers and their Subsidiaries for such month and the portion of the Borrowers’ fiscal year then ending, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year and the comparisons to projections for such period, prepared in accordance with GAAP (subject to year-end adjustments and footnote information required by GAAP), together with a certification by the principal financial or accounting officer of the Borrowers that the information contained in such financial statements fairly presents in all material respects the financial condition of the Borrowers and their Subsidiaries on the date thereof (subject to year-end adjustments and footnote information required by GAAP), including a list of any new Restaurant locations as required pursuant to §9.14;
(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 Borrowers in substantially the form of Exhibit C hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §11 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(de) contemporaneously simultaneously with the delivery of the financial statements referred to in clause subsection (a) above, a statement certified by the statement of all contingent liabilities involving amounts of $1,000,000.00 principal financial or more accounting officer of the Borrower and its Subsidiaries which are not reflected Borrowers setting forth in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect reasonable detail computations of the indebtedness of others, and obligations to reimburse Consolidated Excess Operating Cash Flow for the issuer in respect of any letters of credit)fiscal year then ended;
(ef) contemporaneously with the filing or mailing thereof, copies of all material of a financial naturenature furnished to the holders of the Convertible Preferred Stock or filed with the Securities and Exchange Commission or, reports following an initial public offering of the Parent or proxy statements any of the Borrowers, sent to the shareholders equity holders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in Parent or any of the rating established or deemed to have been established for the Index Debt, written notice of such rating changeBorrowers;
(g) promptly within forty-five (45) days after the beginning of each fiscal year of the Borrowers and, if a Default or Event of Default shall have occurred and be continuing, from time to time upon the filing hereofrequest of the Administrative Agent, copies projections and budgets of all registration statements (other than the exhibits thereto Borrowers and their Subsidiaries organized for the next fiscal year on a month-by-month and quarter-by-quarter basis updating those projections delivered to the Lenders and referred to in §8.4.3 or, if applicable, updating any registration statements on Form S-8 or its equivalentlater such projections delivered in response to a request pursuant to this §9.4(g);
(h) upon reasonable request by all information sent to the Agent, evidence reasonably satisfactory to Agent directors of the timely payment Borrowers regarding the opening of all real estate taxes for the Unencumbered Propertiesnew Restaurants;
(i) not later than November 15 of each year, the Consolidated cash flow projections all notices and other information sent to any holder of the Borrower for the next three yearsConvertible Preferred Stock in its capacity as such;
(j) all notices and other information sent to any holder of Subordinated Debt in its capacity as such; and
(k) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants, management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin ten (10) days of the filing of REIT's Form 10-K with the SEC, if applicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or treasurer of REIT or another senior financial officer of REIT reasonably acceptable to Agent that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to approved by the Agent (the foregoing with respect and who shall have authorized REIT to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered deliver such financial statements and certification thereof to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)and the Lenders, and any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries and of REIT and its Subsidiaries;
(b) as soon as practicablewithin ten (10) days of the filing of REIT's Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the Borrower’s REIT's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or treasurer of the Borrower REIT or its Vice President – Finance another senior financial officer of REIT reasonably acceptable to Agent that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or treasurer of the Borrower REIT or its Vice President – Finance another senior financial officer of REIT reasonably acceptable to Agent in the form of Exhibit F G hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.3(h) - (l) (and the last sentence of §8.3), §8.7, §8.8 and §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. REIT shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit H attached hereto (a “Borrowing Base Certificate”) pursuant to which REIT shall calculate the amount of the Borrowing Base Availability as of the end of the immediately preceding fiscal quarter, list the Unencumbered Borrowing Base Properties and certify that each Unencumbered Borrowing Base Property included therein and in the calculation of the Borrowing Base Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income and Adjusted Net Operating Income for such fiscal quarter for each of the Unencumbered Borrowing Base Properties as and Funds from Operations, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer or treasurer of the Borrower REIT or its Vice President – Finance another senior financial officer of REIT reasonably acceptable to Agent that the information contained in such statement fairly presents in all material respects the Unencumbered Property Funds from Operations, Net Operating Income of the Unencumbered Properties and Adjusted Net Operating Income for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower Borrower, the Guarantors and its their Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Term Loan Agreement (Mid America Apartment Communities Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated 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 audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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, and accompanied by an auditor’s report prepared certified without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesindependent certified public accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated 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 unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents in all 45 -38- material respects the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Freedom Securiteis Corp /De/)
Financial Statements, Certificates and Information. The Borrowers will deliver to the Administrative Agent (for posting to the Lenders) the following:
(a) as soon as practicable, but but, in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated balance sheet sheets of the Borrower Parent and its Subsidiaries as at the end of such year, statements of cash flows, and the related audited Consolidated consolidated statements of incomeoperations, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated financial statements to be in reasonable detail, prepared prepared, in accordance with GAAPGAAP and certified by the Accountants, and accompanied by an auditor’s report prepared without which shall not be subject to any “going concern” or similar qualification or exception (other than any such qualification that is based solely on the Indebtedness hereunder becoming current as a result of not having refinanced such Indebtedness prior to the date which is one year before the applicable Maturity Date or Incremental Term Loan Maturity Date therefor) or any qualification or exception as to the scope of the Accountants’ audit if such qualification or exception as to scope is based upon or results from any limitations imposed by a "Big Four" accounting firm the Borrowers or another nationally recognized firm acceptable to any action (or inaction) of the Agent (the foregoing Borrowers with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;applicable audit.
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Parent, copies of the unaudited Consolidated consolidated balance sheet sheets and statement of operations of the Borrower Parent and its Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related unaudited Consolidated statements statement of income and cash flows for the portion of the Borrower’s fiscal year then elapsedflows, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief principal financial or accounting officer of the Borrower Borrowers (the “CFO” or its Vice President – Finance “CAO”) that the information contained in such consolidated financial statements were prepared in accordance with GAAP and fairly presents present in all material respects the consolidated financial position condition of the Borrower Borrowers and its their Subsidiaries as at the close of business on the date thereof (and the results of operations for the period then ended, subject to year-end adjustments)adjustments and the absence of footnotes;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) Certificate certified by the chief financial officer CFO or CAO as of the Borrower or its Vice President – Finance in end of the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) applicable period, setting forth in reasonable detail the computations evidencing compliance required thereby, provided that, if the Borrowers shall at the time of issuance of such certificate or non-compliance (as at any other time obtain knowledge of any Default or Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrowers will include in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and or otherwise in form and substance reasonably satisfactory deliver promptly to the Agent, together Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodrespect thereto;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);[RESERVED]
(e) contemporaneously with as soon as practicable, but in any event not later than 30 days after the filing or mailing thereof, copies commencement of all material of a financial nature, reports or proxy statements sent to the shareholders each fiscal year of the Borrower;Parent, a copy of the annual budget, projections and business plan for the Parent and its Subsidiaries for such fiscal year; and
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and other information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status audit reports or recommendations regarding internal controls provided by the Accountants to the board of litigation directors of the Parent, or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariescommittee thereof) as the Agent Lenders may reasonably request. Information concerning The Borrowers hereby authorize the Lenders to disclose any information obtained pursuant to this Agreement to all appropriate Governmental Authorities where required by Applicable Law; provided, however, that the Lenders shall, to the extent practicable and allowable under Applicable Law, notify the Borrowers within a reasonable period prior to the time any such litigation or settlement discussions disclosure is made; and provided further, this authorization shall not include attorneybe deemed to be a waiver of any rights to object to the disclosure by the Lenders of any such information which any Borrower has or may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time. Documents required to be delivered pursuant to this Section (to the extent any such documents are included in materials otherwise filed with the SEC and available in ▇▇▇▇▇) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02; (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-client privileged communicationsparty website or whether sponsored by the Administrative Agent); or (iii) on which such report is filed electronically with the SEC’s ▇▇▇▇▇ system; provided that: the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Notwithstanding anything contained herein, unless the Administrative Agent otherwise agrees, in every instance the Borrowers shall be required to provide paper copies of the Compliance Certificates required by this Section 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 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 Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall otherwise include not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information which provided by or on behalf of the Borrowers hereunder (collectively, the “Borrowers’ Materials”) by posting the Borrowers’ Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission 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 the Borrowers or their Affiliates, or the respective securities of any of the foregoing and who may be confidential or subject to a workengaged in investment and other market-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower related activities with respect to such matters as has been Person’s securities. The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrowers’ Materials that may be distributed to Public Lenders and that (w) all Borrowers’ Materials that are to be made prior available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the Effective Dateword “PUBLIC” shall appear prominently on the first page thereof; and
(kx) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with by marking Borrowers’ Materials “PUBLIC,” the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 Borrowers shall be deemed delivered to have authorized the Agent Administrative Agent, the Arrangers, the L/C Issuer and the Lenders if to treat such Form 10Borrowers’ Materials as not containing any material non-K, Form 10-Q, Form 8-K, registration statement or other public information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information although it may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, sensitive and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwiseproprietary) with respect to such Platform the Borrowers or any such information their securities for purposes of Securities Laws (including any information referred to in Section 8.2 below)state securities laws) (provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrowers’ Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrowers’ 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 Arrangers shall be entitled to treat any Borrowers’ Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Side Information.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver and will cause CRC to deliver to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal year years:
(i) in the case of the BorrowerCRLP, commencing with the fiscal year ending December 31, 2021if prepared, the audited Consolidated consolidated balance sheet of the Borrower CRLP and its subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of incomeoperations, changes in capital owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by CRLP; and
(ii) in the case of CRC, the audited consolidated balance sheet of CRC and its subsidiaries (including, without limitation, CRLP and its subsidiaries) at the end of such year, and the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by CRC; each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and and, in each case, accompanied by an auditor’s 's report prepared without qualification as to by the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesAccountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its fiscal quarter quarters:
(including i) in the fourth quarter) case of the BorrowerCRLP, if prepared, copies of the unaudited Consolidated consolidated balance sheet of the Borrower CRLP and its subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income operations, owner's equity (deficit) and cash flows for the portion of the Borrower’s CRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by CRLP; and
(ii) in the case of CRC, copies of the unaudited consolidated balance sheet of CRC and its subsidiaries (including, without limitation, CRLP and its subsidiaries) as at the end of such quarter, and the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of CRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by CRC; all in reasonable detail and prepared in accordance with GAAP (on the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters same basis as used in preparation of any fiscal year may be satisfied by delivery of the CRC's Form 10-Q of the Borrower statements filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer of the Borrower CRLP or its Vice President – Finance CRC, as applicable, that the information contained in such financial statements fairly presents the financial position of CRLP or CRC (as the Borrower case may be) and its Subsidiaries subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified in the form of Exhibit D hereto signed by the chief financial officer of the Borrower CRLP or its Vice President – Finance CRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in ss.9 hereof; and, in the form case of Exhibit F hereto (or in such other form as the Agent may approve from time to time) CRLP, setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodss.9 hereof;
(d) contemporaneously promptly if requested by the Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to any Borrower, CRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with the delivery each annual audit of the financial statements referred books of any Borrower, CRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more any phase of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect business of any letters of credit)Borrower, CRC or any other Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements nature sent to the shareholders holders of any Indebtedness of any Borrower or any Guarantor (other than the BorrowerLoans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;
(f) promptly after subject to subsection (g) below, contemporaneously with the filing or mailing thereof, copies of all material of a Rating Agency shall have announced a change in financial nature filed with the rating established SEC or deemed sent to have been established for the Index Debt, written notice stockholders of such rating changeCRC;
(g) promptly upon as soon as practicable, but in any event not later than ninety (90) days after the filing hereofend of each fiscal year of CRC, copies of all registration the Form 10-K statement filed by CRC with the SEC for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter of CRC, copies of the Form 10-Q statement filed by CRC with the SEC for such fiscal quarter, provided that, in either case, if CRC has filed an extension for the filing of such statements, CRC shall deliver such statements to the Agent within ten (other than 10) days after the exhibits thereto and any registration statements filing thereof with the SEC which filing shall be within fifteen (15) days of CRC's filing for such extension or such sooner time as required to avert a Material Adverse Effect on Form S-8 or its equivalent)CRC;
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time time, but not more frequently than once each calendar quarter so long as no Default or Event of Default has occurred and is continuing, such other financial data and information in about the possession of Borrowers, CRC, the Borrower other Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities as the Agent or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as Lender acting through the Agent may reasonably request. Information concerning , and which is prepared by such litigation Person in the normal course of its business or settlement discussions shall not include attorney-client privileged communicationsis required for securities and tax law compliance including without limitation complete rent rolls for the Unencumbered Properties and summary rent rolls for the other Real Estate, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent existing environmental reports, and the Lenders receive the same level of disclosure from the Borrower insurance certificates with respect to such matters as has been made prior the Real Estate (including the Unencumbered Properties) and tax returns (following the occurrence of a Default or Event of Default or, in the case of CRC, to the Effective Dateconfirm CRC's REIT status); and
(ki) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed simultaneously with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with delivery of the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information financial statements referred to in Section 8.2 below)subsection (a) above, except updates to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final Schedule 6.3 and nonappealable judgmentSchedule 6.19 hereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Cali Realty Corp /New/)
Financial Statements, Certificates and Information. BGI will deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated consolidated balance sheet of the Borrower BGI and its Subsidiaries as at the end last day of such fiscal year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow for such fiscal 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 GAAPGAAP (except as required by a change in GAAP or as concurred to by the Accountants), and accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of BGI or any of its Subsidiaries to continue as going concerns, by the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SECAccountants; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;DB3/ 204224713.6
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of the Borrowers, copies of the unaudited Consolidated consolidated balance sheet of the Borrower BGI and its Subsidiaries as at the end last day of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance BGI that the information contained in such financial statements fairly presents the financial position of the Borrower BGI and its Subsidiaries on the date thereof (subject to the absence of footnotes and year-end adjustments);
(c) 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 BGI in substantially the form of Exhibit C hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All incomeDecember 31, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period2019;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of any of the BorrowerBorrowers;
(fe) promptly after a Rating Agency shall have announced a change in upon request of the rating established or deemed to have been established for the Index DebtAdministrative Agent, written notice of such rating change;BGI’s annual consolidated financial plan; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jf) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Credit Agreement (Barnes Group Inc)
Financial Statements, Certificates and Information. The Parent and the Borrowers will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Parent, the audited Consolidated consolidated balance sheet of the Borrower Parent and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s report prepared certified without qualification as to the scope by Coopers & ▇▇▇▇▇▇▇ LLP or by other independent certified public accountants of the audit by recognized national standing, which statements shall include a "Big Four" accounting firm footnote which identifies any Default or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery Event of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of the Parent, copies of the unaudited Consolidated consolidated balance sheet of the Borrower Parent and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s Parent's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial officer or accounting officers of each of the Borrower or its Vice President – Finance Borrowers and the Parent that the information contained in such financial statements fairly presents the financial position of the Borrower Parent and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with promptly upon the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial officer or accounting officers of the Borrower or its Vice President – Finance Borrowers and the Parent in substantially the form of Exhibit F C attached hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations (i) calculating the Leverage Ratio for purposes of determining the Applicable Margin and (ii) evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 10 hereof and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with promptly upon the filing or mailing thereof, copies of all material information of a financial naturenature (i) filed with the Securities and Exchange Commission, reports or proxy statements (ii) sent to the shareholders stockholders of the BorrowerParent or (iii) received by the Parent or any of its Subsidiaries from the Target or any of its Subsidiaries;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(je) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent or any Bank may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(kf) promptly upon their becoming availableonce each calendar year, copies or more frequently as determined by the Agent if an Event of all registration statements, filings, and regular periodic reports, if any, that Borrower Default shall have filed with occurred and be continuing, upon the Commission (or any Governmental Authority substituted therefor) or any national securities exchangerequest of the Agent, including each Form 8-Kthe Borrowers will, Form 10-K at their own expense, obtain and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered deliver to the Agent appraisal reports in form and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information substance and from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable appraisers satisfactory to the Agent), stating the then current fair market values of all or any portion of the Vessels, provided, that no more than one such appraisal per calendar year shall be conducted and made at the expense of the Borrowers. The Agent first such appraisal following the Closing Date shall distribute any be completed by February 28, 1998. Such appraisal may include an inspection of each such non-SEC filed Vessel by marine engineers or furnished information to the other Lenders, and may do so surveyors selected by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentits sole discretion.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Trico Marine Services Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent and any Lender upon request of such L▇▇▇▇▇ (made through the Agent):
(a) within five (5) days after the filing with the Securities and Exchange Commission of the Borrower’s Annual Report on Form 10-K (or such similar report to be filed for a “foreign private issuer” as soon as practicable, but defined by applicable Securities Laws) with respect to each fiscal year (and in any event not later than ninety within one hundred (90100) days after the end of each such fiscal year year), the consolidated balance sheets of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower Group as at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital income and cash flows for such yearof the Consolidated Group, each setting forth in comparative form (to the extent applicable and, in any event, without requiring restatements of discontinued operations unless otherwise required by GAAP or if otherwise included in the financial statements filed with the Securities and Exchange Commission) the figures for the previous fiscal year and year, all such financial statements to be in reasonable detail, prepared in accordance with GAAP, GAAP and audited and accompanied by an auditor’s a report prepared without and opinion of the Accountants, which report and opinion shall state that such financial statements present fairly the financial position of the Consolidated Group and shall not be subject to any qualification as to going concern or the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesaudit;
(b) within five (5) days after the filing with the Securities and Exchange Commission of the Borrower’s Quarterly Report on Form 10-Q (or such similar report to be filed for a “foreign private issuer” as soon as practicable, but defined by applicable Securities Laws) with respect to each of the first three (3) fiscal quarters of each fiscal year (and in any event not later than forty-five (45) within 60 days after the end of each such fiscal quarter (including the fourth quarter) of the Borrower), copies of the unaudited Consolidated consolidated balance sheet sheets of the Borrower Consolidated Group as at the end of such fiscal quarter, and the related consolidated statements of income and cash flows of the Consolidated Group as at the end of such quarter, subject to normal year-end adjustments and the related unaudited Consolidated statements absence of income and cash flows for the portion of the Borrower’s fiscal year then elapsedfootnotes, all in reasonable detail and prepared in accordance with GAAP (subject to normal year-end adjustments and the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters absence of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; providedfootnotes, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief CFO that the consolidated financial officer statements are prepared in accordance with GAAP and fairly present in all material respects the consolidated financial condition of the Borrower or its Vice President – Finance that Consolidated Group as at the information contained in such financial statements fairly presents the financial position close of the Borrower and its Subsidiaries business on the date thereof (subject to year-end adjustments)and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) Certificate certified by the chief financial officer CFO that the Consolidated Group is in compliance with the covenants contained in Sections 7.01(b), 7.02(i) and 7.14 as of the Borrower or its Vice President – Finance in end of the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) applicable period, setting forth in reasonable detail computations evidencing compliance such compliance; provided, that if the Borrower shall at the time of issuance of such certificate or non-compliance (as at any other time obtain knowledge of any Default or Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrower shall include in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate certificate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory deliver forthwith to the Agent, together with Lenders a certification by certificate specifying the chief financial officer nature and period of existence thereof and what action the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodproposes to take with respect thereto;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) abovewith, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingpromptly following, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the U.S. Securities and Exchange Commission (or proxy statements the Canadian equivalent thereof) or sent to the shareholders stockholders of the Borrower;
(fe) promptly after a Rating Agency shall have announced a change in following any request therefor, information and documentation reasonably requested by the rating established Agent or deemed to have been established any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Index Debt, written notice of such rating change;PATRIOT Act and the Beneficial Ownership Regulation; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jf) from time to time time, such other financial data and other information (including accountants’ management letters and a copy of the Borrower’s annual budget and projections for any fiscal year) as the Lenders may reasonably request. The Borrower shall promptly notify the Agent and each Lender of any change in the information in a Beneficial Ownership Certification, if previously provided, that would result in a change to the possession list of beneficial owners identified in parts (c) or (d) of such certification. The Borrower shall be deemed to have delivered reports and other information referred to in clauses (a), (b), and (d) of this Section 6.04 when (A) such reports or other information have been posted on the Internet website of the Securities and Exchange Commission (h▇▇▇://▇▇▇.▇▇▇.▇▇▇) (or, if applicable, the Canadian equivalent thereof) or on Borrower’s Internet website as previously identified to the Agent and Lenders and (B) the Borrower has notified the Agent by electronic mail of such posting. The Borrower hereby acknowledges that (a) the Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower or its Subsidiaries hereunder (including without limitation auditors’ management letterscollectively, status of litigation or investigations against “Borrower Materials”) by posting the Borrower Materials on Syndtrak, ClearPar, or its Subsidiaries a substantially similar electronic transmission system (the “Platform”) and any settlement discussions relating thereto(b) certain of the Lenders (each, property inspection and environmental reports and a “Public Lender”) may have personnel who do not wish to receive material non-public information as with respect to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as , or the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communicationsrespective securities of any of the foregoing, but shall otherwise include information which and who may be confidential engaged in investment and other market-related activities with respect to such Persons’ securities. 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 Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or subject their securities for purposes of United States Federal, Canadian Federal, provincial, territorial and state securities laws (provided, however, 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 work-product privilege so that portion of the Platform designated “Public Side Information;” and (z) the Agent and the Lenders receive 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 same level of disclosure from Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered under no obligation to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the mark any Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. Such Borrower will deliver to each of the Lenders:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021CAI, the audited Consolidated consolidated balance sheet of the Borrower CAI and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of the audit CAI or any of its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm KPMG LLP or another nationally recognized firm acceptable by other independent certified public accountants satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of the Borrower CAI and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the BorrowerCAI’s and its Subsidiaries fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance CAI that the information contained in such financial statements fairly presents the financial position of the Borrower CAI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) upon the reasonable request of the Administrative Agent, CAI shall provide consolidating financial statements of the type referred to in subsections (a) and (b) above for (i) each of CAI and CAI Barbados and (ii) the non-Guarantor Subsidiaries of CAI 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 CAI 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 in subsection (b), to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance CAI in substantially the form of Exhibit F ExhibitD hereto (or in such other form as the Agent may approve from time to timea "ComplianceCertificate") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ei) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements with any national securities exchange or sent to the shareholders stockholders of CAI or its Subsidiaries 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 notice or other 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 CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) promptly after within forty-five days (45) days of the end of each calendar month and, in any case, simultaneously with the delivery of a Rating Agency shall have announced Loan Request in accordance with §2.9, and at such other times as the Administrative Agent may reasonably request, a change in Borrowing Base Report setting forth the rating established or deemed to have been established for Borrowing Base and the Index Debt, written notice Domestic Borrowing Base as at the end of such rating changecalendar month, the date of such Loan Request or other date so requested by the Administrative Agent, as the case may be;
(g) promptly upon simultaneously with the filing hereofdelivery of the financial statements referred to in subsection (f) above, copies a report listing (i) the aggregate number of all registration statements Containers and (other than ii) the exhibits thereto aggregate number of Chassis, in each case, owned, rented, leased or managed by the such Borrower and any registration statements on Form S-8 or its equivalent);Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers and the Chassis in form and detail satisfactory to the Administrative Agent; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditorsaccountants’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning such litigation Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or settlement discussions shall not include attorney-client privileged communicationson behalf of any Borrower or any of its Subsidiaries hereunder (collectively, but shall otherwise include information which “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be confidential “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or subject their securities) (each, a “Public Lender”). The Borrowers hereby agree that so long as the Borrowers are the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a work-product privilege so 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,” each Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer, the Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers 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 §16.4); (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 Lenders receive 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 same level of disclosure from Platform not designated “Public Investor.” Notwithstanding the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (foregoing or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2contained herein, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 no Borrower shall be deemed delivered under any obligation to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the ▇▇▇▇ any Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable(i) within fifteen (15) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer, chief accounting officer, senior vice president of capital markets or senior vice president-treasurer of REIT, on its behalf, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and (ii) within a reasonable period of time following request therefor, any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicablewithin fifteen (15) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer officer, chief accounting officer, senior vice president of the Borrower capital markets or senior vice president-treasurer of REIT, on its Vice President – Finance behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer officer, chief accounting officer, senior vice president of the Borrower capital markets or senior vice president-treasurer of REIT, on its Vice President – Finance behalf, in the form of Exhibit F K hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. Borrower shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit J attached hereto (a “Borrowing Base Certificate”) pursuant to which the Borrower shall calculate the amount of the Borrowing Base Appraised Value Limit and the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Funds from Operations and Net Operating Income for such fiscal calendar quarter, including, without limitation, Net Operating Income for each of the Mortgaged Properties, a statement of Leasing Costs paid during the prior quarter for and a calculation of the Unencumbered Properties as Holdback, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer officer, chief accounting officer, senior vice president of the Borrower capital markets or senior vice president-treasurer of REIT, on its Vice President – Finance behalf, that the information contained in such statement fairly presents the Unencumbered Property Funds from Operations and Net Operating Income, including, without limitation, the Net Operating Income of each of the Unencumbered Properties Mortgaged Properties, for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower REIT and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Mortgaged Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Mortgaged Properties for each such calendar quarter and year to date and a consolidated operating statement for the Mortgaged Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), and (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Mortgaged Property during such calendar quarter (including the fourth calendar quarter in each year);
(f) promptly following a request by the Agent, as of such date or for such period or periods of time as Agent may reasonably request, (i) a Rent Roll for each Real Estate asset (other than the Mortgaged Properties) and a summary thereof in form satisfactory to Agent, together with a listing of each tenant that has taken occupancy of such Real Estate, (ii) an operating statement for each Real Estate asset (other than the Mortgaged Properties) and a consolidated operating statement for such Real Estate assets (such statements and reports to be in form reasonably satisfactory to Agent), and (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Real Estate asset (other than the Mortgaged Properties);
(g) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (i) listing the Real Estate owned by REIT, the Borrower and their respective Subsidiaries (or in which REIT, the Borrower or any of their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of REIT, the Borrower and their respective Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness, and (iii) attaching copies of any new material mortgage loan documents and amendments to existing mortgage loan documents entered into by any Company subsequent to the date of this Agreement or the last statement delivered pursuant to this §7.4(g), whichever is later;
(h) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerBorrower or REIT;
(fi) promptly following Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and REIT;
(gj) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which the Borrower or REIT shall file with the SEC;
(hk) upon reasonable request notice of any audits pending or threatened in writing with respect to any tax returns filed by the Agent, Borrower or REIT promptly following notice of such audit;
(l) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Mortgaged Properties;
(m) within seven (7) Business Days of notice or receipt, copies of any and all notices of default under any of the organizational agreements of any Company in which the Borrower is a member, shareholder or partner or of any failure by the Borrower to perform any obligation under any of such organizational agreements;
(n) promptly upon receipt thereof, copies of any and all notices of default under any loan document securing or evidencing a mortgage loan made to the Borrower or any of its Subsidiaries secured by a Lien on Real Estate, if such mortgage loan (i) constitutes Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the aggregate has an outstanding principal balance in excess of $30,000,000.00, or (iii) has been accelerated; provided that this §7.4(n) shall not apply to any Indebtedness incurred in connection with any Excluded Property;
(o) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(p) not later than November 15 January 31 of each year, the Consolidated cash flow projections of a budget and business plan for the Borrower and each Mortgaged Property for the next three years;then-current calendar year; and
(jq) from time to time such other financial data and information in the possession of REIT, the Borrower or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against REIT, the Borrower or its any of their respective Subsidiaries and any settlement discussions relating theretothereto (to the extent that disclosure of any such letters, litigation or investigation status or settlement discussions would not waive any applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with shall deliver paper copies thereof to Agent and the SECLenders. If The Borrower authorizes Agent and Arranger to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information is not filed or furnished by dissemination system, and the Borrower with releases Agent and the SECLenders from any liability in connection therewith. Unless otherwise requested by Agent, such information shall any materials to be deemed delivered pursuant to §7.4(h) or (j) may be delivered to Agent by posting such materials to the Borrower’s website (at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) or on ▇▇▇▇▇ (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇) and simultaneously notifying the Agent upon of the Agent's receipt availability of such information from materials at such website (or such other website as the Borrower (which information may be designate in electronic form provided that such electronic form is reasonably acceptable writing to the Agent). The In the event that Agent receives paper copies of any material delivered pursuant to this §7.4 which is not made available by Intralinks, Syndtrak or any other electronic information dissemination system (or by posting to Borrower’s website as provided above), Agent shall distribute any promptly deliver copies of such non-SEC filed or furnished information material to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any each Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower Pledgor and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting member firm of KPMG, LLP or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Pledgor and its Subsidiaries and the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date§9. All income, expense expense, debt and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal calendar quarter for the Unencumbered Properties as Real Estate, prepared on a group, basis consistent with the statements furnished to Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Properties Real Estate for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 1,000,000 or more of the Borrower and its Subsidiaries or the Pledgor which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously simultaneously with the filing delivery of the financial statements referred to in subsections (a) and (b) above, upon request by Agent, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or mailing in which the Borrower or its Subsidiaries owns an interest), (ii) listing the Indebtedness (excluding, for the purposes hereof, the redemption obligations under the Partnership Agreement) of the Borrower and its Subsidiaries, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse;
(f) if requested by the Agent, promptly after they are filed with the Internal Revenue Service, copies of all material of a financial nature, reports or proxy statements sent to the shareholders annual federal income tax returns and amendments thereto of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November December 15 of each year, the Consolidated cash flow projections of a budget and business plan for the Borrower for the next three yearscalendar year;
(jh) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries the Pledgor and any settlement discussions relating theretothereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesthe Pledgor) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential delivered electronically directly to Agent or subject made available to a work-product privilege so that the Agent pursuant to an accessible website and the Lenders receive the same level of disclosure from the Borrower with respect to provided that such matters as has been made prior material is in a format reasonably acceptable to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if upon the Agent’s receipt thereof or access to the website containing such Form 10-Kmaterial. Upon the request of the Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered deliver paper copies thereof to the Agent upon and the Agent's receipt Lenders. The Borrower authorize the Agent to disseminate any such materials through the use of such Intralinks, SyndTrak or any other electronic information from the Borrower (which information may be in electronic form dissemination system provided that such electronic form system is reasonably acceptable secure and access thereto is protected by a password that is only disclosed to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Borrower releases the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or Lenders from any liability in connection therewith (other than the accuracy or completeness of any information posted thereto or contained thereon and liability based on the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the Agent’s gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentmisconduct).
Appears in 1 contract
Financial Statements, Certificates and Information. The 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 Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated consolidated balance sheet of the Borrower MSSR and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of the audit MSSR or any of its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm PricewaterhouseCoopers or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing Required Lenders, together with respect a written statement from such accountants to the Borrower may be satisfied by delivery effect that they have read a copy of this Credit Agreement, and that, in making the Form 10-K examination necessary to said certification, they have obtained no knowledge of the Borrower filed with the SEC; providedany Default or Event of Default, howeveror, that if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall such statement any such information contained in Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis Default or Event of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of the Borrowers, (i) copies of the unaudited Consolidated consolidated balance sheet of the Borrower MSSR and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for such fiscal quarter and the portion of the Borrower’s such Persons’ fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year and the comparisons to projections for such period, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect subject to the Borrower year-end adjustments and its Subsidiaries for the first three quarters of any fiscal year may be satisfied footnote information required by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to LenderGAAP), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance MSSR that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower MSSR and its Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and footnote information required by GAAP); and (ii) statements of sales and statements of net earnings before interest, taxes, depreciation and amortization expense, on a summarized Restaurant-by-Restaurant basis, for each Restaurant operated by any of the Borrowers or their Subsidiaries, setting forth in each case in comparative form the statements for the corresponding period or periods of the prior fiscal year and a comparison to the projections for such period, such statements to be in a form satisfactory to the Required Lenders;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of MSSR, unaudited monthly consolidated financial statements of MSSR and its Subsidiaries for such month and the portion of such Persons’ fiscal year then ending, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year and the comparisons to projections for such period, prepared in accordance with GAAP (subject to year-end adjustments and footnote information required by GAAP), together with a certification by the principal financial or accounting officer of MSSR that the information contained in such financial statements fairly presents in all material respects the financial condition of MSSR and its Subsidiaries on the date thereof (subject to year-end adjustments and footnote information required by GAAP), including a list of any new Restaurant locations as required pursuant to §9.14;
(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 Borrowers in substantially the form of Exhibit C hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §11 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(de) contemporaneously simultaneously with the delivery of the financial statements referred to in clause subsection (a) above, a statement certified by the statement of all contingent liabilities involving amounts of $1,000,000.00 principal financial or more accounting officer of the Borrower and its Subsidiaries which are not reflected Borrowers setting forth in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect reasonable detail computations of the indebtedness of others, and obligations to reimburse Consolidated Excess Operating Cash Flow for the issuer in respect of any letters of credit)fiscal year then ended;
(ef) contemporaneously with the filing or mailing thereof, copies of all material of a financial naturenature filed with the Securities and Exchange Commission or, reports or proxy statements sent to the shareholders equity holders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in Parent or any of the rating established or deemed to have been established for the Index Debt, written notice of such rating changeBorrowers;
(g) promptly within forty-five (45) days after the beginning of each fiscal year of the Borrowers and, if a Default or Event of Default shall have occurred and be continuing, from time to time upon the filing hereofrequest of the Administrative Agent, copies projections and budgets of all registration statements (other than the exhibits thereto Borrowers and their Subsidiaries organized for the next fiscal year on a month-by-month and quarter-by-quarter basis updating those projections delivered to the Lenders and referred to in §8.4.3 or, if applicable, updating any registration statements on Form S-8 or its equivalentlater such projections delivered in response to a request pursuant to this §9.4(g);
(h) upon reasonable request by all information sent to the Agent, evidence reasonably satisfactory to Agent directors of the timely payment Borrowers regarding the opening of all real estate taxes for the Unencumbered Propertiesnew Restaurants;
(i) not later than November 15 all notices and other information sent to any holder of each year, the Consolidated cash flow projections of the Borrower for the next three years;Subordinated Debt in its capacity as such; and
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants, management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent:
(a) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT including its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital shareholders’ equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer of the Borrower or chief financial officer of REIT, on the Borrower’s behalf, that the information contained in such financial statements fairly presents the financial position of REIT including its Subsidiaries, taken as a whole, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SECaccounting firm; provided, however, that the Borrower may satisfy its obligations to deliver the financial statements described in no event shall any reference this §7.4(a) by furnishing to any prior the Agent a copy of its annual report on Form 10-Ks or Proxy Statements which may K in respect of such fiscal year together with the financial statements required to be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)attached thereto, and any other information the Agent may reasonably request to complete a financial analysis of provided the Borrower is required to file such annual report on Form 10-K with the Securities and its SubsidiariesExchange Commission and such filing is actually made;
(b) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT including its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer of REIT or the Borrower or its Vice President – Finance chief financial officer of REIT, on the Borrower’s behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower and REIT including its Subsidiaries Subsidiaries, taken as a whole, on the date thereof (subject to year-end adjustmentsadjustments and absence of footnotes); provided, however, the Borrower may satisfy its obligations to deliver the financial statements described in this §7.4(b) by furnishing to the Agent a copy of its quarterly report on Form 10-Q in respect of such fiscal quarter together with the financial statements required to be attached thereto, provided the Borrower is required to file such quarterly report on Form 10-Q with the Securities and Exchange Commission and such filing is actually made;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a§§7.4(a) and 7.4(b), (bi) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or treasurer of the Borrower or its Vice President – Finance the chief financial officer or treasurer of REIT, on the Borrower’s behalf, in the form of Exhibit F I hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective DateBalance Sheet Date and (ii) a statement of Funds From Operations and Adjusted FFO for the relevant period. The Borrower shall submit with the Compliance Certificate an Unencumbered Pool Certificate in the form of Exhibit H attached hereto (an “Unencumbered Pool Certificate”) pursuant to which the Borrower shall calculate (x) the amount of the Unencumbered Asset Value of each Unencumbered Pool Asset, and (y) the Unencumbered Pool Aggregate Asset Value, each as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. The Compliance Such Unencumbered Pool Certificate shall be accompanied by a copy of the statement of the specify whether there are any defaults under leases at an Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodPool Asset;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause §§7.4(a) and 7.4(b), (ai) above, a schedule detailing the statement of all contingent liabilities involving amounts of $1,000,000.00 or more Net Operating Income for each of the Borrower and its Subsidiaries which are not reflected Unencumbered Pool Assets for each such calendar quarter (such schedule to be in such financial statements or referred form reasonably satisfactory to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of othersAgent), and obligations (ii) any other evidence reasonably required by the Agent to reimburse determine compliance with the issuer covenants contained in respect of any letters of credit)§9 and the other covenants covered by the Compliance Certificate;
(e) contemporaneously simultaneously with the filing delivery of the financial statements referred to in §§7.4(a) and 7.4(b) above, a statement in form and substance reasonably satisfactory to Agent (i) listing the Real Estate owned or mailing leased by REIT and its Subsidiaries (or in which REIT or any of its Subsidiaries owns an interest) and stating the location thereof and the MSA thereof (with respect to Unencumbered Pool Assets only), the date acquired, the aggregate acquisition cost for all such Real Estate, the building age, ownership type (fee simple or Ground Lease), if such Real Estate is leased pursuant to a Ground Lease, the remaining term of such Ground Lease and any renewal options thereunder, the identity of the property manager thereof (with respect to Unencumbered Pool Assets only), the identity of the Tenant thereof (and whether such Tenant is an Investment Grade Tenant) and any guarantor of such Tenant’s obligations under the applicable Lease, other financial information for such Tenant and such guarantor in Borrower’s or a Guarantor’s possession, and scheduled rents, lease expiration dates, renewal options, tenant improvement allowances which are outstanding and payable by the landlord under such Lease and other material terms of the lease(s) applicable to such Real Estate (such as termination options and purchase options), (ii) listing the Indebtedness of REIT and its Subsidiaries (excluding Indebtedness of the type described in §§8.1(a) through 8.1(d) and 8.1(f)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, copies the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness, and (iii) listing the Real Estate owned or leased by Borrower, the Guarantors and their Subsidiaries (or in which Borrower, any Guarantor, or any of all material of their Subsidiaries owns an interest) which are Land Assets or Development Properties, and for each Development Property providing a financial nature, reports or proxy statements sent to the shareholders brief summary of the Borrowerstatus of such development;
(f) promptly following the Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established Internal Revenue Service or deemed to have been established for other applicable Governmental Authority, copies of all income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and REIT;
(g) notice of any material audits pending or threatened in writing with respect to any tax returns filed by REIT or any of its Subsidiaries promptly following notice of such audit;
(h) upon the Agent’s or any Lender’s written request, evidence reasonably satisfactory to the Agent of the timely payment of all real estate taxes for the Unencumbered Pool Assets;
(i) with respect to each Tenant qualifying as an Investment Grade Tenant pursuant to clause (b) of the definition thereof, on or before the anniversary of the last Investment Grade Tenant Certificate was delivered to Agent for such Tenant, an updated Investment Grade Tenant Certificate and supporting Implied Credit Analysis for such Tenant;
(j) promptly upon becoming aware thereof, notice of a change in the credit rating of REIT, Borrower or any Investment Grade Tenant given by a Rating Agency or any announcement that any rating of REIT, Borrower or an Investment Grade Tenant is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by a Rating Agency;
(k) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(l) promptly upon the filing hereofrequest of Agent, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);) and any annual, quarterly or monthly reports and other statements of REIT which are not publicly available; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jm) from time to time time, such other financial data and information in the possession of the Borrower REIT or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower REIT or any of its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports for the Unencumbered Pool Assets (to the extent in Borrower’s possession), and information as to zoning and other legal and regulatory changes affecting the Borrower Borrower, any Guarantor or its Subsidiariesany Unencumbered Property Subsidiary) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent (and the Agent will promptly, after receipt thereof, deliver to the Banks):
(a) as soon as practicable, but in any event not later than ninety one hundred ten (90110) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 GAAPgenerally accepted accounting principles, and accompanied by an auditor’s report prepared certified without qualification as by Ernst & Young or by other independent certified public accountants reasonably satisfactory to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than fortysixty-five (4565) days after the end of each of the first three fiscal quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief financial officer or the treasurer of the Borrower or its Vice President – Finance that to the best of the Borrower's knowledge, 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or the treasurer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F EXHIBIT C attached hereto (or in such other form as the Agent may approve from time to timea "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, 7 hereof and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent or any Bank may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(ki) promptly upon their becoming available, copies aware of all registration statements, filings, the occurrence of any actual or claimed "EVENT OF TERMINATION" under and regular periodic reports, if any, that Borrower shall have filed with as defined in any of the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything documents relating to the contrary in this Section 8.1 or in Section 8.2Securitization, any Form 10-Knotice thereof, Form 10-Qwhich notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, Form 8-K, registration statement or such other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered with respect to the Securitization as the Agent and shall reasonably request. All Confidential Information concerning the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished Borrower supplied by the Borrower with to the SEC. If any such information is not filed or furnished Banks pursuant to the terms hereof will be held in confidence by the Banks and the Banks shall not disclose such Confidential Information except that the Borrower with the SECauthorizes each Bank to disclose any Confidential Information obtained pursuant to this Credit Agreement or any other Loan Document (i) to any bank regulatory authority, such information shall be deemed delivered (ii) to the Agent upon the Agent's receipt any independent auditor or counsel or participant or potential assignee or potential participant of such information from the Borrower (which information may be in electronic form Bank, provided that such electronic form is reasonably acceptable independent auditor or counsel or participant or potential assignee or potential participant enters into a confidentiality agreement with the Borrower substantially similar to such Bank's agreement with the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other LendersBorrower, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”iii) (including, without limitation, Syndtrak Online, IntraLinks or such to all other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except appropriate governmental -24- regulatory authorities to the extent required by such liability results from Bank by law or subpoena, but only to the gross negligence or willful misconduct of the Agent as determined extent permitted by a court of competent jurisdiction in a final applicable laws and nonappealable judgmentregulations, including those applying to classified material.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-K with the SEC, if applicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or treasurer of REIT or another senior financial officer of REIT reasonably acceptable to Agent that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to approved by the Agent (the foregoing with respect and who shall have authorized REIT to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered deliver such financial statements and certification thereof to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)and the Lenders, and any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries and of REIT and its Subsidiaries;
(b) as soon as practicablewithin ten (10) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or treasurer of the Borrower REIT or its Vice President – Finance another senior financial officer of REIT reasonably acceptable to Agent that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or treasurer of the Borrower REIT or its Vice President – Finance another senior financial officer of REIT reasonably acceptable to Agent in the form of Exhibit F G hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.3(h) - (l) (and the last sentence of §8.3), §8.7, §8.8 and §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. REIT shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit H attached hereto (a “Borrowing Base Certificate”) pursuant to which REIT shall calculate the amount of the Borrowing Base Availability as of the end of the immediately preceding fiscal quarter, list the Unencumbered Borrowing Base Properties and certify that each Unencumbered Borrowing Base Property included therein and in the calculation of the Borrowing Base Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income and Adjusted Net Operating Income for such fiscal quarter for each of the Unencumbered Borrowing Base Properties as and Funds from Operations, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer or treasurer of the Borrower REIT or its Vice President – Finance another senior financial officer of REIT reasonably acceptable to Agent that the information contained in such statement fairly presents in all material respects the Unencumbered Property Funds from Operations, Net Operating Income of the Unencumbered Properties and Adjusted Net Operating Income for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower Borrower, the Guarantors and its their Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) promptly upon the request of Agent or the Required Lenders, (i) a Rent Roll for each of the Unencumbered Borrowing Base Properties, and a combined Rent Roll for all of the Unencumbered Borrowing Base Properties, included in the calculation of Unencumbered Asset Value and a summary thereof in form satisfactory to Agent as of the end of each fiscal quarter (including the fourth fiscal quarter in each year), (ii) an operating statement for each of the Unencumbered Borrowing Base Properties for each such quarter and year to date, a consolidated operating statement for the Unencumbered Borrowing Base Properties for each such quarter and year to date, and a balance sheet for the Subsidiary Guarantor which owns or leases any Unencumbered Borrowing Base Property as at the end of the most recently ended fiscal quarter (such statements, balance sheets and reports to be in form reasonably satisfactory to Agent), (iii) a comparison of actual results to budgeted results for each such quarter and year to date, together with the actual results for the same fiscal quarter and year to date for the immediately preceding calendar year, and (iv) a statement of the capital expenditures for the Unencumbered Borrowing Base Properties for each such quarter and year to date, together with a comparison against budgeted forecasts;
(f) promptly upon the request of Agent or the Required Lenders, a statement (i) listing the Real Estate owned by the Borrower, the Guarantors and their Subsidiaries (or in which the Borrower, the Guarantors or their Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower, the Guarantors and their Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof (or if there is a trustee acting on behalf of the holders, the trustee), the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower, the Guarantors and their Subsidiaries which are Unimproved Land or Development Properties, and if a Development Property providing a brief summary of the status of such development;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerBorrower or REIT that is not publicly available;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(gh) promptly upon the filing hereofrequest of Agent, copies of all annual federal income tax returns and amendments thereto of the Borrower and the Guarantors;
(i) promptly upon the request of Agent, copies of any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements of REIT which are not publicly available;
(hj) promptly upon reasonable the request by the of Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Borrowing Base Properties;
(ik) not later than November 15 March 1 of each year, the Consolidated cash flow projections of an operating and capital budget for the Borrower and its Subsidiaries for the next three yearscalendar year;
(jl) promptly upon the request of Agent, copies of any financial covenant reporting, compliance certificate or similar reporting pursuant to the Existing Credit Facilities and the Private Placement Notes;
(m) promptly upon becoming aware thereof, notice of a change in the Credit Rating given by a Rating Agency or any announcement that any rating is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by a Rating Agency; and
(n) from time to time such other financial data and information in the possession of the Borrower Borrower, the Guarantors or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries the Guarantors and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesand the Guarantors) as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with and the SECGuarantors shall deliver paper copies thereof to Agent and the Lenders. If The Borrower and the Guarantors authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower and the Guarantors release Agent makes no express or implied warranty regarding such Platform or and the accuracy or completeness Lenders from any liability in connection therewith. In the event that Agent receives paper copies of any material delivered pursuant to this §7.4 which is not made available by Intralinks, Syndtrak or any other electronic information posted thereto dissemination system (or contained thereon and the by posting to Borrower’s website), Agent shall have no liability promptly deliver copies of any nature whatsoever such material to any each Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Credit Agreement (Mid America Apartment Communities Inc)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders which the Agent shall promptly deliver to each of the Lenders:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021Parent JV Guarantor, the audited Consolidated balance sheet of the Borrower Parent JV Guarantor and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer that the information contained in such financial statements fairly presents in all material respects the financial position of the Parent JV Guarantor and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm KPMG or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of Parent JV Guarantor, the Borrower and its their Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including or 90 days in the fourth quartercase of fiscal year end) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Parent JV Guarantor and its Subsidiaries (including the Borrower and its Subsidiaries) as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the Borrower’s fiscal such quarter then-ended and year then elapsedto date, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower Parent JV Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and §9. The Parent JV Guarantor or the other covenants described Borrower shall submit with the Compliance Certificate a Borrowing Base Availability Certificate in such certificate, including, without limitation, a listing the form of each Unencumbered Property, and (if applicable) setting forth reconciliations Exhibit F attached hereto pursuant to reflect material changes in GAAP since which the Effective Date. All income, expense and value associated with Real Estate Parent JV Guarantor or other Investments disposed the Borrower shall calculate the amount of or added during any quarter will be eliminated from or added to, the Borrowing Base Availability as of the case may be, such calculations, where applicableend of the immediately preceding fiscal quarter. The Compliance Certificate shall be accompanied by a copy (i) copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal quarter for each of the Unencumbered Properties as Collateral Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, and (ii) statement showing, in reasonable detail, the calculated amount of any Interest Shortfall for such fiscal quarter, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer that the information contained in such statement statements fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Collateral Properties and accurately reflects the amount of any such Interest Shortfall for such period;
(d) contemporaneously not later than sixty (60) days after the last day of each fiscal quarter of the Parent JV Guarantor, (i) a Rent Roll for each of the Collateral Properties and a summary thereof in form reasonably satisfactory to Agent as of the end of each fiscal quarter (including the fourth fiscal quarter in each fiscal year), (ii) an operating statement for each of the Collateral Properties for each such fiscal quarter and fiscal year to date and a consolidated operating statement for the Collateral Properties for each such fiscal quarter and fiscal year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging report, and (iii) a copy of each Major Lease or material amendment to any Major Lease entered into with respect to a Collateral Property during such fiscal quarter (including the fourth fiscal quarter in each year);
(e) simultaneously with the delivery of the financial statements referred to in clause subsections (a) and (b) above, upon request by Agent, a statement listing the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of Real Estate owned by the Borrower and its Subsidiaries (or in which are not reflected in such financial statements the Borrower or referred to in its Subsidiaries owns an interest) and stating the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing location thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of date acquired and the Borrower;Property Investment Value thereof.
(f) promptly after a Rating Agency shall have announced a change if requested by the Agent, copies of paid invoices and other evidence of the Loan Parties’ investment of the required forty-five percent (45%) equity requirement in the rating established or deemed to have been established connection with capital expenditures and construction for the Index Debt, written notice of such rating changeeach Value Add Property;
(g) promptly by the later of (i) February 28 of each calendar year or (ii) fifteen (15) days after such budget is adopted and agreed upon by the filing hereofapplicable Subsidiary Guarantor, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)a budget for each Collateral Property for such calendar year;
(h) upon reasonable request to the extent requested by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Collateral Properties;; and
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries Loan Parties (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries Loan Parties and any settlement discussions relating theretothereto (unless such Loan Party in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports with respect to the Collateral Properties and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesCollateral Properties) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential delivered electronically directly to Agent or subject made available to Agent pursuant to an accessible website and the Lenders provided that such material is in a work-product privilege so that the format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior upon Agent’s receipt thereof or access to the Effective Date; and
(k) promptly upon their becoming availablewebsite containing such material. Upon the request of Agent, Borrower shall deliver paper copies thereof to Agent and the Lenders. Each of all registration statementsthe Loan Parties authorizes Agent and Arranger to disseminate any such materials through the use of Intralinks, filingsSyndTrak or any other electronic information dissemination system, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Loan Parties release Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or from any liability in connection therewith (other information is filed or furnished by than the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the liability based on Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the ’s gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentmisconduct).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower -------------------------------------------------- will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with (i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower and each of its Restricted Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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 GAAPgenerally accepted accounting principles, and accompanied by an auditor’s report prepared certified without qualification as by KPMG Peat Marwick LLP or by other independent certified public accountants satisfactory to the scope Agent, and (ii) the unaudited consolidated balance sheets of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to A) the Borrower may be satisfied by delivery and each of its Subsidiaries as at the Form 10-K end of such year, and (B) the Borrower filed and each of its Restricted Subsidiaries, and the related unaudited consolidated statements of income, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared by management in accordance with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a past financial analysis practice of the Borrower and its Subsidiariessuch Subsidiaries and with a certification by the principal financial or accounting officer of the Borrower that such financial statements fairly present the financial condition of the Borrower and such Subsidiaries on the date thereof and the results of operations of the Borrower and such Subsidiaries for the period covered thereby;
(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 quarter (including the fourth quarter) quarters of the Borrower, copies of the unaudited Consolidated consolidated balance sheet sheets of (i) the Borrower and its Subsidiaries, and (ii) the Borrower and its Restricted Subsidiaries, each as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and consolidated statements of cash flows flow for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles (except for provisions for footnotes, reserves, accruals and year-end adjustments), and in each case together with a certification by the foregoing with respect principal financial or accounting officer of the Borrower that such financial statements fairly present the financial condition of the Borrower and such Subsidiaries on the date thereof (subject to the foregoing) and the results of operations of the Borrower and such Subsidiaries for the period covered thereby;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10such month prepared in accordance with generally accepted accounting principles (except for provisions for footnotes, reserves, accruals and year-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lenderend adjustments), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents present the financial position condition of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments)the foregoing) and the results of operations of the Borrower and its Subsidiaries for the period covered thereby;
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance in substantially the form of Exhibit F I (the "Compliance Certificate") hereto (or in such other form as the Agent may approve from time to time) and setting ------- - forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, (S)11 and (if applicable) setting forth reconciliations to reflect material changes in GAAP generally accepted accounting principles since the Effective Balance Sheet Date. All income;
(i) as soon as practicable, expense and value associated with Real Estate or other Investments disposed of or added during but in any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy event within fifteen (15) days of the statement end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base with Eligible Accounts Receivable calculated as at the end of such calendar month and Eligible Inventory calculated as at the end of the Unencumbered Property Net Operating Income for immediately preceding calendar month; and (ii) as soon as practicable, but in any event within (30) days of the end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base calculated with both Eligible Accounts Receivable and Eligible Inventory as at the end of such fiscal quarter for calendar month;
(f) upon the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to request of the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodan Accounts Receivable aging report;
(dg) contemporaneously with the delivery within ten (10) days of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(fh) promptly not later than thirty (30) days after a Rating Agency shall have announced a change in the rating established or deemed to have been established beginning of each fiscal year of the Borrower, projections and budgets of the Borrower and its Subsidiaries for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Propertiesupcoming fiscal year;
(i) not later than November 15 contemporaneously with the delivery thereof, copies of each year, the Consolidated cash flow projections of all accountants' management letters delivered to the Borrower for the next three yearsor any of its Subsidiaries;
(j) from time to time within ten (10) days of a request, such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation request or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which any Bank may be confidential or subject to a work-product privilege so that reasonably request of the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective DateAgent; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Revolving Credit and Acquisition Loan Agreement (Jackson Products Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to each Lender, which, for the purposes of this Section 6.04, may be made available electronically by the Borrowers as provided in the final sentence of this Section 6.04:
(a) 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 NEE Partners or, to the Borrower, commencing with the fiscal year ending December 31, 2021extent that audited financial statements are available for OpCo, the audited Consolidated consolidated balance sheet of the Borrower NEE Partners or, if available, OpCo, and its subsidiaries as at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital income and consolidated statements of cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year or year-end (commencing with the fiscal year 2015,) as applicable, and all such consolidated statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, such consolidated statements to be audited and accompanied by an auditor’s a report and opinion of Deloitte & Touche LLP or by other independent certified public accountants of nationally recognized standing reasonably acceptable to the Agent, which report and opinion shall be prepared without in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit. If applicable, the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to Agent, each Lender and the Agent (Issuing Banks hereby agree that the foregoing with respect to the Borrower may requirement shall be satisfied by delivery to each Lender of NEE Partners’ annual report on Form 10‑K for the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference period for which such financial statements are to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesdelivered;
(b) for so long as audited financial statements of OpCo are not available as soon as practicable, but in any event not later than forty-five one hundred twenty (45120) days after the end of each fiscal quarter (including year of OpCo, the fourth quarter) of the Borrower, copies of the unaudited Consolidated consolidating balance sheet of the Borrower OpCo and its subsidiaries as at the end of such quarteryear, and the related unaudited Consolidated consolidating statements of income and consolidating statements of cash flows for such year, each setting forth in comparative form the portion of figures for the Borrower’s previous fiscal year then elapsedor year-end, as applicable, and all in reasonable detail and such consolidated statements to be prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial officer or accounting officer, Treasurer or Assistant Treasurer of the Borrower or its Vice President – Finance OpCo that the information contained in such financial statements fairly presents the financial position of the Borrower OpCo and its Subsidiaries on as of the date thereof end of such fiscal year and a written statement from the principal financial or accounting officer, Treasurer or Assistant Treasurer of OpCo to the effect that such officer has read a copy of this Agreement, and that, in making the examination necessary to said certification, he or she has obtained no knowledge of any Default (subject other than, if applicable, a potential Event of Default as a result of the failure to year-end adjustmentscomply with the financial covenants set forth in Section 6.13 (provided that OpCo shall have delivered to the Agent a certificate of a Responsible Officer of OpCo certifying as to OpCo’s intention to exercise the Cure Right)), or, if such officer shall have obtained knowledge of any then existing Default, he or she shall disclose in such statement any such Default; provided that such officer shall not be liable to the Agent, the Lenders or the Issuing Banks for failure to obtain knowledge of any Default;
(c) simultaneously with as soon as practicable, but in any event not later than sixty (60) days after the delivery end of each of the financial statements referred to in subsections first three (a3) and (b) abovefiscal quarters of OpCo, a statement (a “Compliance Certificate”) certified by the chief financial officer copies of the Borrower or unaudited consolidating balance sheet of OpCo and its Vice President – Finance in subsidiaries as at the form end of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 quarter, and the other covenants described in such certificate, including, without limitation, a listing related consolidating statements of each Unencumbered Property, income and (if applicable) setting forth reconciliations to reflect material changes in GAAP since consolidating statements of cash flows for the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy portion of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a groupyear to which they apply, and otherwise all prepared in form and substance reasonably satisfactory to the Agentaccordance with generally accepted accounting principles, together with a certification by the chief principal financial officer or accounting officer, Treasurer or Assistant Treasurer of the Borrower or its Vice President – Finance OpCo that the information contained in such statement financial statements fairly presents the Unencumbered Property Net Operating Income financial position of OpCo and its Subsidiaries as of the Unencumbered Properties end of such quarter (subject to year‑end adjustments) and a written statement from the principal financial or accounting officer, Treasurer or Assistant Treasurer of OpCo to the effect that such officer has read a copy of this Agreement, and that, in making the examination necessary to said certification, he or she has obtained no knowledge of any Default (other than, if applicable, a potential Event of Default as a result of the failure to comply with the financial covenants set forth in Section 6.13 (provided that OpCo shall have delivered to the Agent a certificate of a Responsible Officer of OpCo certifying as to OpCo’s intention to exercise the Cure Right)), or, if such officer has obtained knowledge of any then existing Default, he or she shall disclose in such statement any such Default; provided that such officer shall not be liable to the Agent, the Lenders or the Issuing Banks for such periodfailure to obtain knowledge of any Default;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to nature filed by NEE Partners with the shareholders of the BorrowerSecurities and Exchange Commission;
(fe) promptly after the commencement thereof, Notice of all actions and proceedings before any court, governmental agency or arbitrator of the type described in Section 5.06 to which any Loan Party is a Rating Agency shall have announced a change in the rating established party or deemed to have been established for the Index Debt, written notice of such rating change;their respective properties are subject; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jf) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent Agent, any Lender or any Issuing Bank may reasonably request. Information concerning such litigation Reports or settlement discussions shall not include attorney-client privileged communicationsfinancial information required to be delivered pursuant to this Section 6.04 shall, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration extent any such financial statements, filings, and regular periodic reports, if any, that Borrower shall have proxy statements or other materials are included in materials otherwise filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchangeSecurities and Exchange Commission, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed to be delivered to hereunder on the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt date of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lendersfiling, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms also be delivered electronically as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment11.02.
Appears in 1 contract
Sources: Revolving Credit Agreement (NextEra Energy Partners, LP)
Financial Statements, Certificates and Information. The Borrowers --------------------------------------------------- will deliver to the Banks:
(a) as soon as practicable, but but, in any event not later than ninety (90) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021Borrowers, the audited Consolidated consolidated and consolidating balance sheet sheets of the Borrower Borrowers as at the end of such year, statements of cash flows, and the related audited Consolidated consolidated and consolidating statements of income, changes in capital and cash flows for such yearoperations, each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAPGAAP and, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied consolidated financial statements, certified by delivery of the Form 10-K of Accountants. In addition, simultaneously therewith, the Borrower filed Borrowers shall use their best efforts to provide the Banks with a written statement from such Accountants to the effect that the Borrowers are in compliance with the SEC; providedcovenants set forth in (S)8 hereof, howeverand that, in making the examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall such statement any such information contained in Default or Event of Default; provided that such Accountants shall not be liable to the Banks for failure to obtain knowledge of any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis Default or Event of the Borrower and its SubsidiariesDefault;
(b) as soon as practicable, but in any event not later than forty-five (45) 45 days after the end of each fiscal quarter (including the fourth quarter) of the BorrowerBorrowers commencing with the fiscal quarter ending September 30, 1996, copies of the unaudited Consolidated consolidated and consolidating balance sheet sheets and statement of operations of the Borrower Borrowers as at the end of such quarter, subject to year end adjustments, and the related unaudited Consolidated statements statement of income and cash flows for the portion of the Borrower’s fiscal year then elapsedflows, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Borrowers (the "CFO") that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present the consolidated financial position condition of the Borrower and its Subsidiaries Borrowers as at the close of business on the date thereof (and the results of operations for the period then ended, subject to year-end adjustments)adjustments in accordance with GAAP;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F C hereto (or the "Compliance Certificate") certified by the CFO that the Borrowers are in such other form compliance with the covenants contained in (S)(S)6, 7 and 8 hereof as of the Agent may approve from time to time) end of the applicable period setting forth in reasonable detail computations evidencing compliance with (S)(S)7.1, 7.3, 7.9, and 8 hereof, provided that if the Borrowers shall at the time of issuance of such certificate or non-compliance (as at any other time obtain knowledge of any Default or Event of Default, the case may be) with the covenants contained in Section 9.1 and the other covenants described Borrowers shall include in such certificate, including, without limitation, certificate or otherwise deliver forthwith to the Banks a listing certificate specifying the nature and period of each Unencumbered Propertyexistence thereof and what action the Borrowers propose to take with respect thereto, and (if applicableii) setting forth reconciliations a certificate in the form of Exhibit D hereto with respect to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy operating permits of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodBorrowers;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) abovewith, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingpromptly following, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;Parent; and
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(je) from time to time such other financial data and other information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ accountants' management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Banks or the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that The Borrowers hereby authorize the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, Banks and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of to disclose any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever obtained pursuant to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect this Agreement to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined all appropriate governmental regulatory authorities where required by a court of competent jurisdiction in a final and nonappealable judgmentlaw.
Appears in 1 contract
Sources: Revolving Credit Agreement (Eastern Environmental Services Inc)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower and its Subsidiaries at the end of such year, and the related audited Consolidated statements of income, changes in capital shareholder's equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by Boulay, Heutmaker & Zibell & Co. P.L.L.P., or by a "Big Four" accounting firm or another nationally recognized firm acceptable accoun▇▇▇▇ ▇ir▇, ▇▇▇ ▇▇rm ▇▇-▇▇▇ filed with the SEC (unless the SEC has approved an extension, in which event the Borrower will deliver to the Agent (and each of the foregoing with respect to the Borrower may be satisfied by delivery Banks a copy of the Form 10-K KSB simultaneously with delivery to the SEC), a statement of the Borrower filed with Borrower's taxable net income for the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)fiscal year, and any other information the Agent Banks may reasonably request need to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five thirty (4530) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowercalendar month, copies of the internally prepared, unaudited Consolidated balance sheet of the Borrower and its Subsidiaries, as at the end of such quartermonth, and the related unaudited Consolidated statements of income income, changes in shareholder's equity and cash flows for the portion of the Borrower’s 's fiscal year then elapsed, and a statement showing the aging of the receivables and payables for the Mortgage Loans, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)detail, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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 adjustmentsadjustments and adjustments that would be required under generally accepted accounting principles applicable to accrual-based accounting).
(c) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Borrower in each year, copies of any Form 10-QSB filed with the SEC (unless the SEC has approved an extension in which event the Borrower will deliver such copies of the Form 10-QSB to the Agent and each of the Banks simultaneously with delivery to the SEC);
(cd) simultaneously with the delivery as soon as practicable, but in any event not later than forty-five (45) days after each fiscal quarter of the financial statements referred to in subsections (a) and (b) aboveBorrower, copies of a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the Consolidated statement of the Unencumbered Property Net Operating Income Adjusted EBITDA for such fiscal quarter for the Unencumbered Properties as Borrower and its Subsidiaries and a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer Consolidated statement of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties Borrowing Base Adjusted EBITDA for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of fiscal quarter for the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingSubsidiaries, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously prepared on a basis consistent with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent statement furnished pursuant to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.ss.6.4
Appears in 1 contract
Sources: Revolving Credit Agreement (American Church Mortgage Co)
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 one hundred twenty (90120) days after the end of each fiscal year of each of CAI and the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of each of CAI and the Borrower and their respective Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of each of CAI, the audit Borrower or any of their respective Subsidiaries to continue as going concerns, by a "Big Four" accounting firm KPMG LLP or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of CAI and the Borrower and their respective Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of CAI and the Borrower and their respective Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year of CAI and the Borrower and their respective Subsidiaries then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of CAI and the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents the financial position of CAI and the Borrower and its their respective Subsidiaries on the date thereof (subject to year-end adjustments);
(c) upon the reasonable request of the Administrative Agent, consolidating financial statements of the type referred to in subsections (a) and (b) above for the non-Guarantor Subsidiaries of CAI and 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 CAI or the Borrower 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 in subsection (b), to year-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 CAI in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, § 10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ei) contemporaneously with the filing or mailing thereof, copies of all public filings containing material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements with any national securities exchange or sent to the shareholders stockholders of the Borrower, CAI or its respective Subsidiaries and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by the Borrower, CAI or its respective Subsidiaries, copies of each public notice or other public correspondence received from the Securities 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 the Borrower, CAI or any of its respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) promptly after simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and, in any case, simultaneously with the delivery of a Rating Agency shall have announced Loan Request in accordance with §2.6, a change in Borrowing Base Report setting forth the rating established Borrowing Base as of the end of the immediately preceding calendar month or deemed to have been established for as of the Index Debt, written notice date of such rating changeLoan Request, as applicable;
(g) promptly upon simultaneously with the filing hereofdelivery of the items referred to in subsection (f) above, copies a report listing the aggregate number of all registration statements (other than Containers owned, rented, leased or managed by the exhibits thereto Borrower and any registration statements on Form S-8 or its equivalent);Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers in form and detail satisfactory to the Administrative Agent; and
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in (including accountants’ management letters) as the possession Administrative Agent or any Lender may reasonably request. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower or any of its Subsidiaries hereunder (including without limitation auditors’ management letterscollectively, status “Borrower Materials”) by posting the Borrower Materials on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or another similar electronic system (the “Platform”) and (b) certain of litigation 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 investigations against their securities) (each, a “Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (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 and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrower or its Subsidiaries securities for purposes of United States Federal and any settlement discussions relating theretostate securities laws (provided, property inspection and environmental reports and information as however, that to zoning and other legal and regulatory changes affecting the extent the Borrower or its SubsidiariesMaterials constitute Information, they shall be treated as set forth in § 16.4); (y) as all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that Platform designated “Public Investor;” and (z) the Administrative Agent and the Lenders receive the same level of disclosure from Arranger shall be entitled to treat the Borrower with respect to such matters Materials that are not marked “PUBLIC” as has been made prior to being suitable only for posting on a portion of the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with Platform not designated “Public Investor.” Notwithstanding the Commission (foregoing or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2contained herein, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 no Borrower shall be deemed delivered under any obligation to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by ▇▇▇▇ the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. Borrower will deliver to Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated balance sheet of the Borrower at and its Subsidiaries as of the end of such year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request require to complete a financial analysis of the Borrower and its Subsidiaries; provided that so long as Borrower is required to file its audited financial statements with the Securities and Exchange Commission, the delivery of such filed financial statements shall satisfy the forgoing requirement;
(b) as soon as practicablenot later than sixty (60) days after the end of each fiscal quarter of Borrower and its Subsidiaries prior to January 1, but in any event 2016 and not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the BorrowerBorrower and its Subsidiaries thereafter, copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at of the end of such quarter, and the related unaudited Consolidated statements of income income, changes in capital and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (other than the foregoing inclusion of footnotes); provided that so long as Borrower is required to file its quarterly financial statements with respect to the Borrower Securities and its Subsidiaries for Exchange Commission, the first three quarters of any fiscal year may be satisfied by delivery of such filed financial statements shall satisfy the Form 10-Q of the Borrower filed with the SECforgoing requirements; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer Principal Financial Officer of the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents presents, in all material respects, the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) aboveof this §7.4, a statement (a “Compliance Certificate”) certified by the chief financial officer Principal Financial Officer of the Borrower or its Vice President – Finance in the form of Exhibit F B hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described therein;
(d) concurrently with the delivery of the financial statements described in such certificate, including, without limitationsubsections (a) and (b) of this §7.4, a listing certificate signed by the Principal Financial Officer of Borrower to the effect that, having read this Agreement, and based upon an examination which such officer deems sufficient to enable such officer to make an informed statement, such officer is not aware of any Default or Event of Default, or if such Default or Event of Default has occurred, specifying the facts with respect thereto;
(e) within sixty (60) days after the end of each Unencumbered Propertycalendar quarter, a certificate in the form of Exhibit E attached hereto (a “Borrowing Base Certificate”), certified by a Principal Financial Officer of Borrower, pursuant to which Borrower shall calculate the amount of the Borrowing Base as of the end of the immediately preceding calendar quarter; provided that (i) Borrower may, at its option, deliver up to two additional Borrowing Base Certificates each quarter with each Borrowing Base Certificate in connection with a redesignation or addition of Borrowing Base Assets as contemplated hereunder, and (if applicableii) setting forth reconciliations to reflect material changes in GAAP since Borrower shall deliver a Borrowing Base Certificate at the Effective Datetime of each request for a Loan demonstrating compliance with the requirements of §2.
1. All income, expense and value associated with Real Estate or other Investments Borrowing Base Assets disposed of or added during any such calendar quarter will be eliminated from or added to, as the case may be, such calculations, where applicable.
(f) if requested by Agent, copies of all annual federal income tax returns and amendments thereto of Borrower and its Subsidiaries;
(g) not later than March 1 of each year during the term of the Loan, the budget for Borrower and its Subsidiaries for such calendar year. The Compliance Certificate Such budget shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, Agent and shall be submitted to Agent together with a certification by the chief financial officer narrative description of the Borrower or its Vice President – Finance that assumptions upon which the budget is based and such other information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such periodas Agent may request;
(dh) contemporaneously simultaneously with the delivery of the financial statements Compliance Certificate referred to in clause subsection (ac) aboveof this §7.4, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.updated Schedule 6.20
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent shall promptly deliver to the Lenders):
(a) 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 each of CAI and the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of each of CAI and the Borrower and their respective Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of each of CAI, the audit Borrower or any of their respective Subsidiaries to continue as going concerns, by a "Big Four" accounting firm KPMG LLP or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of CAI and the Borrower and their respective Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of CAI and the Borrower and their respective Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year of CAI and the Borrower and their respective Subsidiaries then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of CAI and the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents the financial position of CAI and the Borrower and its their respective Subsidiaries on the date thereof (subject to year-end adjustments);
(c) upon the reasonable request of the Administrative Agent, consolidating financial statements of the type referred to in subsections (a) and (b) above for the non-Guarantor Subsidiaries of CAI and 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 CAI or the Borrower 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 in subsection (b), to year-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 CAI in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, § 10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ei) contemporaneously with the filing or mailing thereof, copies of all public filings containing material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements with any national securities exchange or sent to the shareholders stockholders of the Borrower, CAI or its respective Subsidiaries (provided that so long as CAI is a public reporting company, the filing of such reports on ▇▇▇▇▇ will be deemed to satisfy this reporting requirement) and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by the Borrower, CAI or its respective Subsidiaries, copies of each public notice or other public correspondence received from the Securities 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 the Borrower, CAI or any of its respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) promptly after simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and, on each Principal Payment Date, a Rating Agency shall have announced Borrowing Base Report setting forth the Borrowing Base as of the end of the immediately preceding calendar month and a change in the rating established or deemed calculation of any required principal prepayment pursuant to have been established for the Index Debt, written notice of such rating change§3.2.1 hereof;
(g) promptly upon simultaneously with the filing hereofdelivery of the items referred to in subsection (f) above, copies a report listing the aggregate number of all registration statements (other than Containers owned, rented, leased or managed by the exhibits thereto Borrower and any registration statements on Form S-8 or its equivalent)Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers in form and detail satisfactory to the Administrative Agent;
(h) upon reasonable request by simultaneously with the Agent, evidence reasonably satisfactory to Agent delivery of the timely payment annual financial statements set forth in clause (a), a listing of all real estate taxes for the Unencumbered Properties;specific Eligible Containers and Eligible Direct Finance Leases included in the Borrowing Base as of the last day of the immediately preceding calendar quarter; and
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in (including accountants’ management letters) as the possession Administrative Agent or any Lender may reasonably request. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower or any of its Subsidiaries hereunder (including without limitation auditors’ management letterscollectively, status “Borrower Materials”) by posting the Borrower Materials on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or another similar electronic system (the “Platform”) and (b) certain of litigation 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 investigations against their securities) (each, a “Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (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 and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrower or its Subsidiaries securities for purposes of United States Federal Securities Laws and any settlement discussions relating theretostate securities laws (provided, property inspection and environmental reports and information as however, that to zoning and other legal and regulatory changes affecting the extent the Borrower or its SubsidiariesMaterials constitute Information, they shall be treated as set forth in § 16.4); (y) as all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that Platform designated “Public Investor;” and (z) the Administrative Agent and the Lenders receive the same level of disclosure from Arranger shall be entitled to treat the Borrower with respect to such matters Materials that are not marked “PUBLIC” as has been made prior to being suitable only for posting on a portion of the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with Platform not designated “Public Investor.” Notwithstanding the Commission (foregoing or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2contained herein, Borrower shall not be under any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered obligation to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by ▇▇▇▇ the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a Materials “PlatformPUBLIC.”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. ESC and Lead Borrower will deliver to Agent:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021ESC, the audited Consolidated balance sheet of the Borrower at ESC and its Subsidiaries as of the end of such year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" ESC’s current accounting firm or another other nationally recognized accounting firm reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent or Lenders may reasonably request require to complete a financial analysis of the Borrower ESC and its Subsidiaries; provided that so long as ESC is required to file its audited financial statements with the Securities and Exchange Commission, the delivery of such filed financial statements shall satisfy the foregoing requirements of this clause (a);
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter of ESC and its Subsidiaries (including excluding the fourth quarter) of the Borrowerfiscal quarter in each year), copies of the unaudited Consolidated balance sheet of the Borrower ESC and its Subsidiaries as at of the end of such quarter, and the related unaudited Consolidated statements of income income, changes in capital and cash flows for the portion of the BorrowerESC’s fiscal year then elapsed, all in reasonable detail and prepared on a Consolidated basis in accordance with GAAP (other than the inclusion of footnotes); provided that so long as ESC is required to file its quarterly financial statements with the Securities and Exchange Commission, the delivery of such filed financial statements shall satisfy the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SECrequirements; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer Principal Financial Officer of the Borrower or its Vice President – Finance ESC that the information contained in such financial statements fairly presents presents, in all material respects, the financial position of the Borrower ESC and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) not later than one hundred twenty (120) days after the end of each fiscal year of NOC, the audited Consolidated balance sheet of NOC and its Subsidiaries as of the end of such year, and the related statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report prepared without qualification by NOC’s current accounting firm or a nationally recognized accounting firm reasonably acceptable to Agent, and any other information Agent or Lenders may require to complete a financial analysis of NOC and its Subsidiaries.
(d) not later than sixty (60) days after the end of each fiscal quarter of NOC and its Subsidiaries (excluding the fourth fiscal quarter in each year), copies of the balance sheet of NOC and its Subsidiaries as of the end of such quarter, and the related statements of income, changes in capital and cash flows for the portion of NOC’s fiscal year then elapsed, all in reasonable detail and prepared on a Consolidated basis in accordance with GAAP (other than the inclusion of footnotes); together with a certification by the Principal Financial Officer of NOC that the information contained in such financial statements fairly presents, in all material respects, the financial position of NOC and its Subsidiaries on the date thereof (subject to year-end adjustments);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a), (b), (c) and (bd) aboveof this §7.4, a statement (a “Compliance Certificate”) certified by the chief financial officer Principal Financial Officer of NOC and the Borrower or its Vice President – Finance Principal Financial Officer of ESC in the form of Exhibit F B hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Propertytherein, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Closing Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(df) contemporaneously concurrently with the delivery of the financial statements referred to described in clause subsections (a), (b), (c) aboveand (d) of this §7.4, a certificate signed by the statement Principal Financial Officer of all contingent liabilities involving amounts of $1,000,000.00 or more of NOC to the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (includingeffect that, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of othershaving read this Agreement, and obligations based upon an examination which such officer deems sufficient to reimburse the issuer in respect enable such officer to make an informed statement, such officer is not aware of any letters Default or Event of credit);
(e) contemporaneously Default, or if such Default or Event of Default has occurred, specifying the facts with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating changerespect thereto;
(g) promptly upon simultaneously with the filing hereofdelivery of the Compliance Certificate referred to in subsection (e) of this §7.4, copies a statement, certified as true and correct by the Principal Financial Officer of NOC, of all registration statements (other than Indebtedness of NOC and its Subsidiaries as the exhibits thereto end of such fiscal quarter, including, with respect to each such Indebtedness, the original principal amount thereof and outstanding principal amount as of the end of such fiscal quarter, the amount remaining undisbursed, if any, the maturity date and any registration statements on Form S-8 extension options, the required monthly payments of principal and interest, the identity of the lender, the interest rate, the collateral for such Indebtedness, and whether any default or its equivalent)event of default exists with respect to such Indebtedness;
(h) upon reasonable request if requested by the Agent, evidence reasonably satisfactory to Agent of the timely payment copies of all real estate taxes for the Unencumbered Propertiesannual federal income tax returns and amendments thereto of ESC and its Subsidiaries;
(i) not later than November 15 March 1 of each yearyear during the term of the Loan, the Consolidated cash flow projections Budget for NOC and its Subsidiaries for such calendar year. Such Budget shall be in form reasonably satisfactory to Agent and shall be submitted to Agent together with a narrative description of the Borrower for assumptions upon which the next three yearsBudget is based and such other information as Agent may request;
(j) not later than March 1 of each year during the term of the Loan, projected statements of profit and loss and cash flows for NOC and its Subsidiaries, prepared on a quarterly basis, for the current calendar year and next succeeding calendar year. Such projections shall be in form reasonably satisfactory to Agent and shall be submitted to Agent together with a narrative description of the assumptions upon which such projections are based and such other information as Agent may request; and
(k) from time to time upon the request of Agent or any Lender, copies of surveys prepared by each state agency with primary responsibility for regulating any Borrower’s operations in any such state.
(l) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries pertaining to ESC and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) , NOC and its Subsidiaries, and the Collateral, as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect request from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Sources: Credit Agreement (Emeritus Corp\wa\)
Financial Statements, Certificates and Information. The 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 BorrowerParent, commencing with (i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower 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 audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows 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 accompanied by an auditor’s report prepared related consolidated statement of income and consolidated statement of cash flow, certified, without qualification and without an expression of uncertainty as to the scope ability of the audit Parent, Mont Re or any of their Subsidiaries to continue as going concerns, by a "Big Four" accounting firm PricewaterhouseCoopers or another nationally recognized firm acceptable any other independent certified public accountant engaged pursuant to §6.3(c) and (ii); the Agent (the foregoing with respect to the Borrower may be satisfied by delivery consolidated balance sheet of the Form 10-K Mont Re and its Subsidiaries and the consolidating balance sheet of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis 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 fiscal quarter (including the fourth quarter) of the Borrowerfiscal quarters of the Parent, (i) copies of the unaudited Consolidated consolidated balance sheet of the Borrower 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 unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow and consolidating statement of income for the portion of the BorrowerParent’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance Parent that the information contained in such financial statements fairly presents the financial position of the Borrower Parent and its Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) copies of the unaudited consolidated balance sheet of the Mont Re and its Subsidiaries and the unaudited consolidating balance sheet of the 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 Mont 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 Mont Re that the information contained in such financial statements fairly presents the financial position of the 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 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 Borrowers will provide copies of such sections to the Administrative Agent;
(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 D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §8 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income;
(e) no later than the tenth (10th) Business Day of each month, expense or, following the occurrence and value associated with Real Estate or during the continuance of an Event of Default, at such other Investments disposed of or added during any quarter will be eliminated from or added to, times as the case Administrative Agent may berequest, such calculationsa certificate (the “Pledged Collateral Certificate”) substantially in the form of Exhibit E attached hereto, where applicable. The Compliance Certificate shall be accompanied signed by an officer of Mont 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 Mont Re and each other Insurance Subsidiary, a copy of the statement annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer jurisdiction of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income domicile of the Unencumbered Properties for such periodany Insurance Subsidiary;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(eg) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements sent to the shareholders stockholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)Borrowers;
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) 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 Borrowers shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements. Information concerning Documents required to be delivered pursuant to §6.4(a) or (b) or §6.4(g) (to the extent any such litigation or settlement discussions shall not include attorney-client privileged communications, but shall documents are included in materials otherwise include information which filed with the Securities and Exchange Commission) may be confidential delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Mont Re posts such documents, or subject to provides a work-product privilege so that link thereto on Mont Re’s website on the Agent and Internet at the Lenders receive website address listed on Schedule 15.7; or (ii) on which such documents are posted on the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reportsBorrowers’ behalf on an Internet or intranet website, if any, that Borrower 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 Borrowers shall have filed with deliver paper copies of such documents to the Commission (Administrative Agent or any Governmental Authority substituted thereforLender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) Mont Re shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any national securities exchangesuch documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., including each Form 8-K, Form 10-K and Form 10-Q filed with the Commissionsoft copies) of such documents. Notwithstanding anything contained herein, in every instance Mont Re shall be required to provide paper copies of the Compliance Certificates required by §6.4(d) to the contrary 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 this Section 8.1 or in Section 8.2any event shall have no responsibility to monitor compliance by the Borrowers with any such request for delivery, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 and each Lender shall be deemed delivered solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arranger will make available to the Agent Lenders and the Lenders if such Form 10-KFronting Bank materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished “Borrower Materials”) by posting the Borrower with Materials on IntraLinks or another similar electronic system (the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) and (includingb) certain of the Lenders may be “public-side” Lenders (i.e., without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time Lenders that do not wish to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any receive material non-public information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to either Borrower or its securities) (each, a “Public Lender”). The Borrowers 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,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Fronting Bank, the LC Administrator and the Lenders to treat such Platform Borrower Materials as not containing any material non-public information with respect to either Borrower or any such information its securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrower Materials constitute Information, they shall be treated as set forth in §15.13); (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 determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Investor.”
Appears in 1 contract
Sources: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable(i) within fifteen (15) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or accounting officer of REIT, on its behalf, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and (ii) within a reasonable period of time following request therefor, any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicablewithin fifteen (15) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, in the form of Exhibit F GJ hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. Borrower shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit I attached hereto (a “Borrowing Base Certificate”) pursuant to which the Borrower shall calculate the amount of the Borrowing Base Value and the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Funds from Operations and Net Operating Income for such fiscal quarter calendar quarter, including, without limitation, Net Operating Income for each of the Unencumbered Properties as Mortgaged Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, that the information contained in such statement fairly presents the Unencumbered Property Funds from Operations and Net Operating Income, including, without limitation, the Net Operating Income of each of the Unencumbered Properties Mortgaged Properties, for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower REIT and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously simultaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders delivery of the Borrowerfinancial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Mortgaged Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Mortgaged Properties for each such calendar quarter and year to date and a consolidated operating statement for the Mortgaged Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), and (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Mortgaged Property during such calendar quarter (including the fourth calendar quarter in each year);
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(ge) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable following a request by the Agent, evidence reasonably satisfactory to Agent as of the timely payment such date or for such period or periods of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning , (i) a Rent Roll for each Real Estate asset (other than the Mortgaged Properties) and a summary thereof in form satisfactory to Agent, together with a listing of each tenant that has taken occupancy of such litigation Real Estate, (ii) an operating statement for each Real Estate asset (other than the Mortgaged Properties) and a consolidated operating statement for thesuch Real Estate assets (such statements and reports to be in form reasonably satisfactory to Agent), and (iii) a copy of each Lease or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject amendment to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower any Lease entered into with respect to such matters as has been made prior to a Real Estate asset (other than the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the AgentMortgaged Properties). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent, in form and substance satisfactory to the Agent, with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin ten (10) days of the filing of REIT's Form 10-K with the SEC, if applicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, shareholders’ equity, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer, chief executive officer, treasurer or chief accounting officer of the REIT, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" an independent nationally recognized accounting firm or another nationally recognized firm acceptable reasonably approved by the Agent and who shall have authorized REIT to deliver such financial statements and certifications thereof to the Agent (and the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesLenders;
(b) as soon as practicablewithin ten (10) days of the filing of REIT's Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the Borrower’s REIT's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer, chief executive officer, treasurer or chief accounting officer of the Borrower or its Vice President – Finance REIT that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a§§7.4(a) and 7.4(b), (bi) above, a statement (a “Compliance Certificate”) certified by the chief financial officer, chief executive officer, treasurer or chief accounting officer of the Borrower or its Vice President – Finance REIT in the form of Exhibit F G hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date, (ii) a statement of Funds from Operations for the relevant period, and (iii) a projection for the current and next three (3) succeeding calendar quarters of compliance with the covenants described in the Compliance Certificate. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause §§7.4(a) and 7.4(b), (ai) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more a Rent Roll for each of the Borrower and its Subsidiaries which are not reflected Real Estate in such financial statements or referred form satisfactory to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect Agent as of the indebtedness end of otherseach calendar quarter (including the fourth calendar quarter in each year), and obligations (ii) an operating statement for each of the Mortgaged Properties for each such calendar quarter and year to reimburse date and a consolidated operating statement for the issuer Real Estate for each such calendar quarter and year to date (such statements and reports to be in respect of any letters of creditform reasonably satisfactory to the Agent);
(e) simultaneously with the delivery of the financial statements referred to in §§7.4(a) and 7.4(b) above, a statement (i) listing the Real Estate owned by REIT and its Subsidiaries (or in which REIT or any of its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, the Net Operating Income, square footage and occupancy, and whether such Real Estate constitutes a Land Asset or a Development Property, and (ii) listing the Indebtedness of REIT and its Subsidiaries (excluding Indebtedness of the type described in §§8.1(a), 8.1(c), 8.1(d) and 8.1(f)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Secured Indebtedness, Recourse Indebtedness or Non-Recourse Indebtedness;
(f) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or reports, proxy statements and all other information sent to the shareholders owners of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established Borrower or deemed to have been established for the Index Debt, written notice of such rating changeREIT;
(g) promptly following the Agent’s request, after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and REIT;
(h) promptly upon the filing hereofthereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and annual, quarterly, monthly, special (8-K) or other reports or information that REIT or any of its Subsidiaries shall file with the SEC;
(hi) upon reasonable request notice of any audits pending or threatened in writing with respect to any tax returns filed by the Agent, REIT or any of its Subsidiaries promptly following notice of such audit;
(j) evidence reasonably satisfactory to the Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesReal Estate;
(ik) not later than November 15 promptly following the occurrence thereof, written notice to the Agent of each year, the Consolidated cash flow projections of the Borrower for the next three yearsany new or additional Indebtedness or Liens on any Real Estate directly or indirectly owned by Borrower;
(jl) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion; and
(m) from time to time time, such other financial data and information in the possession of the Borrower REIT or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower REIT or any of its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower REIT or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation The Borrower shall cooperate with the Agent in connection with the publication of certain materials and/or information provided by or settlement discussions on behalf of the Borrower. Documents required to be delivered pursuant to the Loan Documents shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential delivered by or subject on behalf of the Borrower to a work-product privilege so that the Agent and the Lenders receive (collectively, “Information Materials”) pursuant to this Section. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the same level Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of disclosure from Agent, the Borrower with respect shall deliver paper copies thereof to such matters as has been made prior to Agent and the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the CommissionLenders. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2§7.4, the Borrower shall not be required to deliver any Form 10-K, Form K or 10-QQ of REIT to Agent if such 10-K or 10‑Q is publicly available on the SEC’s ▇▇▇▇▇ Website The Borrower and the Guarantors authorize Agent and Arranger to disseminate any such materials, Form 8-Kincluding without limitation the Information Materials through the use of Intralinks, registration statement SyndTrak or any other electronic information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the dissemination system (an “Electronic System”). Any such Electronic System is provided “as is” and “as available.” The Agent and the Lenders if such Form 10-KArranger do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in any notice, Form 10-Qdemand, Form 8-Kcommunication, registration statement information or other information material provided by or on behalf of Borrower that is filed distributed over or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower Electronic System (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent“Communications”). The Agent shall distribute No warranty of any such non-SEC filed kind, express, implied or furnished information to the other Lendersstatutory, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlineany warranty of merchantability, IntraLinks fitness for a particular purpose, non-infringement of third-party rights or such freedom from viruses or other electronic platforms as the code defects, is made by Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy Arranger in connection with the Communications or completeness the Electronic System. In no event shall the Agent, the Arranger or any of their directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any information posted thereto kind, including, without limitation, direct or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lenderindirect, Borrower special, incidental or other Person consequential damages, losses or expenses (whether sounding in tort, contract or otherwise) with respect to such Platform arising out of the Borrower’s, any Guarantors’, the Agent’s or any such information (including any information referred to in Section 8.2 below)Arranger’s transmission of Communications through the Electronic System, except to and the extent such liability results from Borrower and the gross negligence or willful misconduct of Guarantors release Agent, the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.Arranger
Appears in 1 contract
Sources: Credit Agreement (GTJ Reit, Inc.)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated balance sheet of the Borrower REIT Guarantor and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT Guarantor that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT Guarantor and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting member firm of ▇▇▇▇▇▇, LLP or another nationally recognized accounting firm reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)its reasonable discretion, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower REIT Guarantor and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income and cash flows for the portion of the BorrowerREIT Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower or its Vice President – Finance REIT Guarantor that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower REIT Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above an executed Borrowing Base Availability Certificate in the form of Exhibit F and a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance Guarantor in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date§9. All income, expense expense, debt and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income for such fiscal calendar quarter for each of the Unencumbered Properties as Collateral Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance REIT Guarantor that the information contained in such statement fairly presents the Unencumbered Property in all material respects Net Operating Income of the Unencumbered Collateral Properties for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 1,000,000 or more of the Borrower and its Subsidiaries Credit Parties which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously simultaneously with the filing delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Collateral Properties and a summary thereof in form reasonably satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Collateral Properties for each such calendar quarter and year to date and a consolidated operating statement for the Collateral Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging, and (iii) a copy of each Lease or mailing thereofamendment to any Lease entered into with respect to a Collateral Property during such calendar quarter (including the fourth calendar quarter in each year);
(f) intentionally omitted;
(g) if reasonably requested by Agent, promptly after they are filed with the Internal Revenue Service, copies of all material of a financial nature, reports or proxy statements sent to the shareholders annual federal income tax returns and amendments thereto of the Borrower;
(fh) promptly after a Rating Agency copies of all reports and notices reported to shareholders of the REIT Guarantor must be provided to the Agent within 15 days from the date shareholders are presented materials, provided that any item that is filed via Form 8K or otherwise publicly available through the SEC shall have announced a change in be treated as being delivered to the rating established or deemed to have been established for the Index Debt, written notice of such rating changeAgent;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which Borrower or any Guarantor shall file with the SEC;
(hj) upon reasonable request copies of all financial and covenant reporting for the Plymouth 20, LLC senior and mezzanine loans simultaneously with providing to respective lenders;
(k) not later than December 15 of each year, a budget and business plan for the Guarantor and each Collateral Property for the next calendar year;
(l) to the extent requested by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Collateral Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(jm) from time to time such other financial data and information in the possession of the Borrower REIT Guarantor or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries Credit Parties and any settlement discussions relating theretothereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesCredit Parties) as the Agent may reasonably request. The Borrower shall reasonably cooperate with the Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the Agent (collectively, “Information concerning such litigation Materials”) pursuant to this Section and the Borrower shall designate Information Materials (a) that are either available to the public or settlement discussions shall not include attorney-client privileged communicationsmaterial with respect to the Borrower and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, but shall otherwise include information which as “Public Information” and (b) that are not Public Information as “Private Information.” Unless and until Agent or the Lenders receive written notification to the contrary, Borrower hereby designates all Information Materials as “Private Information” for purposes of this Section and this Agreement. Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to Agent provided that such material is in a work-product privilege so that the format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders receive upon Agent’s receipt thereof. Upon the same level request of disclosure from Agent, the Borrower with respect shall deliver paper copies thereof to Agent. The Borrower and the Guarantors authorize Agent and Arranger to disseminate any such matters as has been made prior to materials, including without limitation the Effective Date; and
(k) promptly upon their becoming availableInformation Materials through the use of Intralinks, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (SyndTrak or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K other electronic information dissemination system (an “Electronic System”). Any such Electronic System is provided “as is” and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the “as available.” The Agent and the Lenders if such Form 10-KArranger do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in any notice, Form 10-Qdemand, Form 8-Kcommunication, registration statement information or other information material provided by or on behalf of Borrower that is filed distributed over or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower Electronic System (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent“Communications”). The Agent shall distribute No warranty of any such non-SEC filed kind, express, implied or furnished information to the other Lendersstatutory, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Onlineany warranty of merchantability, IntraLinks fitness for a particular purpose, non-infringement of third-party rights or such freedom from viruses or other electronic platforms as the code defects, is made by Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy Arranger in connection with the Communications or completeness the Electronic System. In no event shall the Agent, the Arranger or any of their directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any information posted thereto kind, including, without limitation, direct or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lenderindirect, Borrower special, incidental or other Person consequential damages, losses or expenses (whether sounding in tort, contract or otherwise) arising out of the Borrower’s, any Guarantors’, the Agent’s or any Arranger’s transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, the Arranger and the Lenders from any liability in connection therewith. Certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries 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 Platform Persons’ securities. The Borrower hereby agrees that it will identify that portion of the Information Materials that may be distributed to the Public Lenders and that (i) all such Information Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders and the Arranger to treat such Information Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries, its Affiliates or any such information their respective securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence Information Materials constitute confidential information, they shall be treated as provided in §18.7); (iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any electronic dissemination system designated “Public Investor” or willful misconduct of a similar designation; and (iv) the Agent and the Arranger shall be entitled to treat any Information Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in any electronic dissemination system not designated “Public Investor” or a final and nonappealable judgmentsimilar designation.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will furnish or cause to be furnished to each Lender:
(a) as soon as practicable, but in any event not later than ninety Within one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with Borrowers: (i) the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet sheets of the Borrower Borrowers and their Subsidiaries as at the end of such year and (ii) the related consolidated statements of income and surplus and cash flow for such year, setting forth in comparative form with respect to such consolidated financial statements figures for the previous fiscal year, all in reasonable detail, together with the opinion thereon of independent public accountants selected by the Borrowers and reasonably satisfactory to the Lenders, which opinion shall be in a form generally recognized as unqualified and shall state that the financial statements have been prepared in accordance with GAAP applied on a basis consistent with that of the preceding fiscal year (except for changes, if any, which shall be specified and approved in such opinion) and that the audit by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards related to reporting. The Borrowers shall promptly deliver to the Lenders upon receipt thereof, copies of any management letters submitted to any Borrower by such Borrowers' accountants in connection with any examination of the financial statements of any Borrower made by such accountants;
(b) Within thirty (30) days after the end of each month during Borrowers' fiscal year, (i) the unaudited consolidated and consolidating balance sheets of the Borrowers and the Subsidiaries as at the end of such period, and (ii) the related audited Consolidated unaudited consolidated and consolidating statements of income, changes in capital income and surplus and cash flows for such year, each setting forth in comparative form the figures period and for the previous period from the beginning of the current fiscal year to the end of such period, all in reasonable detail and signed by the chief financial officer or treasurer of the Borrowers. Upon request of any Lender, such monthly statements shall include agings, as of the end of said month, of all the Borrowers' accounts receivable and a monthly inventory position report. All such statements to shall be in reasonable detail, prepared in accordance with GAAP, the format approved by and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm reasonably acceptable to the Agent (Lenders. For month ending April, 2000, the foregoing monthly statements shall only be required for Nashua. Thereafter, such monthly statements shall be required for all Borrowers;
(c) Together with respect the financial statements delivered pursuant to subparagraph (a) above, a statement signed by the accountants who have reported on the same to the Borrower may be satisfied by delivery effect that in connection with their examination of such financial statements they have reviewed the Form 10-K provisions of this Credit Agreement and have no knowledge of any event or condition which constitutes an Event of Default or which, after notice or expiration of any applicable grace period or both, would constitute such an Event of Default or, if they have such knowledge, specifying the Borrower filed with the SECnature and period of existence thereof; provided, however, that in no event issuing such statement, such independent accountants shall any reference not be required to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered go beyond normal auditing procedures conducted in connection with their opinion referred to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiariesabove;
(bd) On an annual basis prior to the Borrowers' fiscal year end, furnish the Borrowers' business plan and budget for the upcoming fiscal year which include a projected profit and loss statement, balance sheet, cash flow projections and a capital budget;
(e) Furnish the Lenders with a fully executed compliance certificate substantially in the form of compliance certificate attached hereto as soon as practicableExhibit B, but in any event not later than forty-five within thirty (4530) days after the end of each fiscal quarter (including the fourth quarter) of the Borrower, copies of the unaudited Consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated statements of income and cash flows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification by the chief financial officer of the Borrower or its Vice President – Finance 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) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “"Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit");
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly Within twenty (20) days after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice end of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent each fiscal month of the timely payment of all real estate taxes for the Unencumbered Properties;
Borrowers, (i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from until such time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level conditions of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.ss.11.7
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Nashua Corp)
Financial Statements, Certificates and Information. The Borrower will deliver each of the Lenders):
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021CAI, the audited Consolidated consolidated balance sheet of the Borrower CAI and its Subsidiaries as at the end of such year, and the related audited Consolidated statements consolidated statement of income, changes in capital income and consolidated statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of the audit CAI, or any of its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm KPMG LLP or another nationally recognized firm acceptable by other independent certified public accountants reasonably satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five forty‑five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of the Borrower CAI and its Subsidiaries as at the end of such quarter, and the related unaudited Consolidated statements consolidated statement of income and consolidated statement of cash flows flow for the portion of the Borrower’s fiscal year of CAI and its Subsidiaries then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of CAI and the Borrower or its Vice President – Finance that the information contained in such financial statements fairly presents the financial position of the Borrower CAI and its Subsidiaries on the date thereof (subject to year-end year‑end adjustments);
(c) 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 CAI in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ei) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements with any national securities exchange or sent to the shareholders stockholders of CAI or its Subsidiaries 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 notice or other correspondence received from the Securities 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 CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(e) simultaneously with the delivery of the Borrowerfinancial statements referred to in subsections (a) and (b) above and, on each Principal Payment Date, a Borrowing Base Report setting forth the Borrowing Base as of the end of the immediately preceding calendar month, a listing of all Containers previously included in the Borrowing Base that has been subject to an Event of Loss and a calculation of any Required Principal Amount pursuant to §3.2.1 hereof;
(f) promptly after simultaneously with the delivery of the items referred to in subsections (a) and (b) above, a Rating Agency shall have announced a change report listing the aggregate number of Containers owned, rented, leased or managed by the Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers in form and detail satisfactory to the rating established or deemed to have been established for the Index Debt, written notice of such rating change;Administrative Agent; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms accountants’ management letters and consolidating financial statements of CAI and its Subsidiaries) as the Administrative Agent or any Lender may elect from time reasonably request. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to time). Any Platform shall be the Lenders materials and/or information provided by or on an "as is" and "as available" basis, and behalf of the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person any of its Subsidiaries hereunder (whether sounding in tortcollectively, contract “Borrower Materials”) by posting the Borrower Materials on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or otherwiseanother 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 such Platform the Borrower or their securities) (each, a “Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (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 and the Lenders to treat the Borrower Materials as not containing any material non‑public information with respect to the Borrower or its securities for purposes of United States Federal Securities Laws and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (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 the Borrower Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, Borrower shall not be under any obligation to ▇▇▇▇ the Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable(i) within fifteen (15) days of the filing of REIT’s Form 10-K with the SEC, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021calendar year, the audited Consolidated consolidated balance sheet of the Borrower REIT and its Subsidiaries at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or chief accounting officer of REIT, on its behalf, that the information contained in such financial statements fairly presents the financial position of REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" nationally recognized accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied reasonably approved by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and (ii) within a reasonable period of time following request therefor, any other information the Agent Lenders may reasonably request to complete a financial analysis of the Borrower REIT and its Subsidiaries;
(b) as soon as practicablewithin fifteen (15) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal calendar quarter (including the fourth quarter) of the Borrowereach year, copies of the unaudited Consolidated consolidated balance sheet of the Borrower as REIT and its Subsidiaries, at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, unaudited consolidated balance sheet and cash flows for the portion of the BorrowerREIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, that the information contained in such financial statements fairly presents the financial position of the Borrower REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or REIT, on its Vice President – Finance behalf, in the form of Exhibit F K hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 §8.1(i) and §9 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. Borrower shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit J attached hereto (a “Borrowing Base Certificate”) pursuant to which the Borrower shall calculate the amount of the Borrowing Base Appraised Value Limit and the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Funds from Operations and Net Operating Income for such fiscal quarter calendar quarter, including, without limitation, Net Operating Income for each of the Unencumbered Properties as Mortgaged Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or chief accounting officer, on its Vice President – Finance behalf, that the information contained in such statement fairly presents the Unencumbered Property Funds from Operations and Net Operating Income, including, without limitation, the Net Operating Income of each of the Unencumbered Properties Mortgaged Properties, for such periodperiods;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower REIT and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Mortgaged Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Mortgaged Properties for each such calendar quarter and year to date and a consolidated operating statement for the Mortgaged Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Mortgaged Property during such calendar quarter (including the fourth calendar quarter in each year), (iv) evidence reasonably required by Agent to determine satisfaction with the requirement contained in paragraph (viii) of the definition of “Eligible Real Estate” contained in §1.1, and (v) evidence reasonably required by Agent to determine compliance with the covenant contained in §9.6;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (i) listing the Real Estate owned by REIT, the Borrower and their respective Subsidiaries (or in which REIT, the Borrower or any of their respective Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, and (ii) listing the Indebtedness of REIT, the Borrower and their respective Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders owners of the BorrowerBorrower or REIT;
(fh) promptly following Agent’s request, after a Rating Agency shall have announced a change in they are filed with the rating established or deemed to have been established for Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Index Debt, written notice of such rating changeBorrower and REIT;
(gi) promptly upon the filing hereof, copies of all any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and any annual, quarterly or monthly reports and other statements and reports which the Borrower or REIT shall file with the SEC;
(hj) upon reasonable request notice of any audits pending or threatened in writing with respect to any tax returns filed by the Agent, Borrower or REIT promptly following notice of such audit;
(k) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered PropertiesMortgaged Properties following payment thereof;
(il) with respect to any Real Estate that is not later than November 15 of each yeara Mortgaged Property, the Consolidated cash flow projections most recent Appraisal of the Borrower for the next three yearssuch Real Estate promptly upon finalization thereof;
(jm) promptly upon receipt thereof, copies of any and all notices of default under any loan document securing or evidencing a mortgage loan made to the Borrower or any of its Subsidiaries secured by a Lien on Real Estate, if such mortgage loan (i) constitutes Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the aggregate has an outstanding principal balance in excess of $30,000,000.00, or (iii) has been accelerated;
(n) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(o) [Intentionally Omitted.]
(p) from time to time such other financial data and information in the possession of REIT, the Borrower or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against REIT, the Borrower or its any of their respective Subsidiaries and any settlement discussions relating theretothereto (to the extent that disclosure of any such letters, litigation or investigation status or settlement discussions would not waive any applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any of its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with shall deliver paper copies thereof to Agent and the SECLenders. If The Borrower authorizes Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower releases Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 1 contract
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but available and in any event not later than within ninety (90) days after the end of each fiscal year of the Borrowercalendar year, commencing with the fiscal year ending December 31, 2021, the an audited Consolidated consolidated balance sheet of the Borrower at Parent and its Subsidiaries as of the end of such year, year and the related audited Consolidated consolidated statements of income, changes in capital shareholders’ equity and cash flows for such year, each setting forth in each case in comparative form the figures for the previous fiscal year and year, all certified by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing, with such statements certification to be in reasonable detail, prepared in accordance with GAAP, free of exceptions and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm qualifications not acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesRequired Lenders;
(b) as soon as practicable, but available and in any event not later than within forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three (3) calendar quarters of each year, copies of the unaudited Consolidated a consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such quarter and the related statement of income and statement of cash flows for such quarter and for the portion of the year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the related unaudited Consolidated statements of income and cash flows for the corresponding portion of the Borrower’s fiscal year then elapsedprevious year, all in reasonable detail certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification consistency by the chief financial officer, chief accounting officer or treasurer of the Borrower or its Vice President – Finance 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)Parent;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance Parent in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing ). Calculations of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. Parent shall submit with the Compliance Certificate a Unencumbered Asset Certificate in the form of Exhibit E hereto (a “Unencumbered Asset Certificate”) pursuant to which Parent shall calculate the amount of the Unencumbered Asset Availability as of the end of the immediately preceding fiscal quarter, list the Subject Properties and certify that each Subject Property included therein and in the calculation of the Unencumbered Asset Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Consolidated Net Operating Income for such fiscal quarter for each of the Unencumbered Properties as Subject Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer, chief accounting officer or treasurer of the Borrower or its Vice President – Finance Parent that the information contained in such statement fairly presents in all material respects the Unencumbered Property Consolidated Net Operating Income of the Unencumbered Properties for such periodperiods. Such Unencumbered Asset Certificate shall specify whether there are any defaults under leases at a Subject Property;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause subsections (a) and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more (i) a Rent Roll for each of the Borrower Subject Properties, and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, a combined Rent Roll for all guaranties, endorsements and other contingent obligations in respect of the indebtedness Subject Properties and a summary thereof in form satisfactory to Agent as of othersthe end of each calendar quarter (including the fourth calendar quarter in each year) and (ii) an operating statement for each of the Subject Properties for each such quarter and year to date, a consolidated operating statement for the Subject Properties for each such quarter and year to date, and obligations a balance sheet for the Subsidiary Guarantor which owns or leases any Subject Property as at the end of the most recently ended calendar quarter (such statements, balance sheets and reports to reimburse be in form reasonably satisfactory to Agent), together with a certification by the issuer chief financial officer, chief accounting officer or treasurer of Parent that the information contained therein is true, correct and complete in respect of any letters of credit)all material respects;
(e) contemporaneously with upon the filing or mailing thereofrequest of the Agent, copies of all material of a financial naturestatements, reports or proxy statements sent to the shareholders of the BorrowerParent;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereofrequest of the Agent, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and annual, quarterly, monthly or special (8-K) reports which Parent or Borrower shall file with the SEC; provided that, in the case of annual and quarterly reports on Forms 10-K and 10-Q, respectively, such reports shall be deemed to be delivered hereunder if posted on the Parent’s website;
(hg) upon reasonable request any notice received by the AgentBorrower or any Guarantor of any pending, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
threatened or contemplated eminent domain proceedings against (i) not later than November 15 of each year, the Consolidated cash flow projections any of the Borrower for Subject Properties or (ii) any other Real Estate which may, in the next three years;case of this clause (ii), individually or in the aggregate have any Material Adverse Effect; and
(jh) from time to time such other financial data and information in the possession of the Borrower Borrower, each Guarantor or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesany Guarantor) as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrower and Parent shall deliver paper copies thereof to Agent and the Lenders. Borrower with the SEC. If and Parent authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower and Parent release Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. Such Borrower will deliver to each of the Lenders:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021CAI, the audited Consolidated consolidated balance sheet of the Borrower CAI and its Subsidiaries, as at the end of such year, and the related audited Consolidated statements statement of income, changes in capital income and statement of cash flows flow 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 accompanied by an auditor’s report prepared certified, without qualification and without an expression of uncertainty as to the scope ability of the audit CAI or any of its Subsidiaries to continue as going concerns, by a "Big Four" accounting firm KPMG LLP or another nationally recognized firm acceptable by other independent certified public accountants satisfactory to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Administrative Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfirst three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited Consolidated consolidated balance sheet of the Borrower CAI and its Subsidiaries, as at the end of such quarter, and the related unaudited Consolidated statements statement of income and statement of cash flows flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance CAI that the information contained in such financial statements fairly presents the financial position of the Borrower CAI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) 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 CAI in substantially the form of Exhibit D hereto (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, §10 and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Balance Sheet Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicable. The Compliance Certificate shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer of the Borrower or its Vice President – Finance that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(ei) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports nature filed with the Securities and Exchange Commission or proxy statements with any national securities exchange or sent to the shareholders stockholders of CAI or its Subsidiaries 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 notice or other correspondence received from the Securities 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 CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(e) within forty-five days (45) days of the Borrowerend 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;
(f) promptly after simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a Rating Agency shall have announced a change report listing the aggregate number of Containers owned, rented, leased or managed by the such Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers in form and detail satisfactory to the rating established or deemed to have been established for the Index Debt, written notice of such rating change;Administrative Agent; and
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms accountants’ management letters and consolidating financial statements of CAI and its Subsidiaries) as the Administrative Agent or any Lender may elect from time reasonably request. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to time). Any Platform shall be the Lenders materials and/or information provided by or on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness behalf of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person any of its Subsidiaries hereunder (whether sounding in tortcollectively, contract “Borrower Materials”) by posting the Borrower Materials on SyndTrak or otherwiseanother 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 such Platform the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that so long as the Borrowers are 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,” each Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer, the Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States Federal and state securities laws (including any information referred to in Section 8.2 below)provided, except however, that to the extent such liability results from the gross negligence or willful misconduct Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (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 Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as determined by being suitable only for posting on a court portion of competent jurisdiction in a final and nonappealable judgmentthe Platform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver to the Lender:
(a) as soon as practicable, but in any event not later than ninety (90) 120 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, the audited Consolidated consolidated balance sheet of the Borrower at the end of such year, and the related audited Consolidated consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and accompanied by an auditor’s 's report prepared without qualification as to the scope of the audit by a "Big FourSix" accounting firm or another nationally recognized accounting firm reasonably acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)Lender, and any other information the Agent Lender may reasonably request require to complete a financial analysis of the Borrower and its SubsidiariesBorrower;
(b) as soon as practicable, but in any event not later than forty-five (45) 45 days after the end of each fiscal quarter of the Borrower (including the fourth quarter) of the Borrowerfiscal quarter in each year), copies of the unaudited Consolidated consolidated balance sheet of the Borrower as at the end of such quarter, and the related unaudited Consolidated consolidated statements of income income, changes in capital and cash flows for the portion of the Borrower’s 's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)generally accepted accounting principles, together with a certification by the chief principal financial or accounting officer of the Borrower or its Vice President – Finance 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) simultaneously with not later than ______ days prior to the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer of the Borrower or its Vice President – Finance in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing beginning of each Unencumbered Propertyrespective calendar year, and the budget (if applicable"Budget") setting forth reconciliations to reflect material changes in GAAP since for the Effective Date. All income, expense and value associated with Real Estate or other Investments disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculations, where applicablenext calendar year. The Compliance Certificate Budget shall be accompanied by a copy of the statement of the Unencumbered Property Net Operating Income for such fiscal quarter for the Unencumbered Properties as a group, and otherwise in form and substance reasonably satisfactory to the Agent, Lender and shall be submitted to the Lender together with a certification by the chief financial officer narrative description of the Borrower or its Vice President – Finance that assumptions upon which the Budget is based and such other information contained in such statement fairly presents as the Unencumbered Property Net Operating Income of the Unencumbered Properties for such period;Lender may request; and
(d) contemporaneously with the delivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders of the Borrower;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent);
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ ' management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating theretomarket comparable studies, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which may be confidential or subject to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filings, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 shall be deemed delivered to the Agent and the Lenders if such Form 10-K, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SEC. If any such information is not filed or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basis, and the Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgment.
Appears in 1 contract
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but available and in any event not later than within ninety (90) days after the end of each fiscal year of the Borrowercalendar year, commencing with the fiscal year ending December 31, 2021, the audited Consolidated a consolidated balance sheet of the Borrower at Parent and its Subsidiaries as of the end of such year, year and the related audited Consolidated consolidated statements of income, changes in capital shareholders’ equity and cash flows for such year, each setting forth in each case in comparative form the figures for the previous fiscal year and year, all certified by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing, with such statements certification to be in reasonable detail, prepared in accordance with GAAP, free of exceptions and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a "Big Four" accounting firm or another nationally recognized firm qualifications not acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent), and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its SubsidiariesRequired Lenders;
(b) as soon as practicable, but available and in any event not later than within forty-five (45) days after the end of each fiscal quarter (including the fourth quarter) of the Borrowerfour calendar quarters of each year, copies of the unaudited Consolidated a consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such quarter and the related statement of income and statement of cash flows for such quarter and for the portion of the year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the related unaudited Consolidated statements of income and cash flows for the corresponding portion of the Borrower’s fiscal year then elapsedprevious year, all in reasonable detail certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and prepared in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender), together with a certification consistency by the chief financial officer, chief accounting officer or treasurer of the Borrower or its Vice President – Finance 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)Parent;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of the Borrower or its Vice President – Finance Parent in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing ). Calculations of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date. All income, expense and value associated with Real Estate or other Investments acquired or disposed of or added during any quarter will be eliminated from or added to, as the case may be, such calculationsadjusted, where applicable. Parent shall submit with the Compliance Certificate a Unencumbered Asset Certificate in the form of Exhibit E hereto (a “Unencumbered Asset Certificate”) pursuant to which Parent shall calculate the amount of the Unencumbered Asset Availability as of the end of the immediately preceding fiscal quarter, list the Subject Properties and certify that each Subject Property included therein and in the calculation of the Unencumbered Asset Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Consolidated Net Operating Income for such fiscal quarter for each of the Unencumbered Properties as Subject Properties, prepared on a group, basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer, chief accounting officer or treasurer of the Borrower or its Vice President – Finance Parent that the information contained in such statement fairly presents in all material respects the Unencumbered Property Consolidated Net Operating Income of the Unencumbered Properties for such periodperiods. Such Unencumbered Asset Certificate shall specify whether there are any defaults under leases at a Subject Property;
(d) contemporaneously simultaneously with the delivery of the financial statements referred to in clause subsections (a) and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more (i) a Rent Roll for each of the Borrower Subject Properties, and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, a combined Rent Roll for all guaranties, endorsements and other contingent obligations in respect of the indebtedness Subject Properties and a summary thereof in form satisfactory to Agent as of othersthe end of each calendar quarter (including the fourth calendar quarter in each year) and (ii) an operating statement for each of the Subject Properties for each such quarter and year to date, a consolidated operating statement for the Subject Properties for each such quarter and year to date, and obligations a balance sheet for the Subsidiary Guarantor which owns or leases any Subject Property as at the end of the most recently ended calendar quarter (such statements, balance sheets and reports to reimburse be in form reasonably satisfactory to Agent), together with a certification by the issuer chief financial officer, chief accounting officer or treasurer of Parent that the information contained therein is true, correct and complete in respect of any letters of credit)all material respects;
(e) contemporaneously with upon the filing or mailing thereofrequest of the Agent, copies of all material of a financial naturestatements, reports or proxy statements sent to the shareholders of the BorrowerParent;
(f) promptly after a Rating Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(g) promptly upon the filing hereofrequest of the Agent, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)) and annual, quarterly, monthly or special (8-K) reports which Parent or Borrower shall file with the SEC; provided that, in the case of annual and quarterly reports on Forms 10-K and 10-Q, respectively, such reports shall be deemed to be delivered hereunder if posted on the Parent’s website;
(hg) upon reasonable request any notice received by the AgentBorrower or any Guarantor of any pending, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
threatened or contemplated eminent domain proceedings against (i) not later than November 15 of each year, the Consolidated cash flow projections any of the Borrower for Subject Properties or (ii) any other Real Estate which may, in the next three years;case of this clause (ii), individually or in the aggregate have any Material Adverse Effect; and
(jh) from time to time such other financial data and information in the possession of the Borrower Borrower, each Guarantor or its their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiariesany Guarantor) as the Agent or any Lender may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential or subject delivered electronically directly to a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect provided that such material is in a format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and the Lenders if such Form 10-Kupon Agent’s receipt thereof. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by Borrower and Parent shall deliver paper copies thereof to Agent and the Lenders. Borrower with the SEC. If and Parent authorize Agent and Arranger to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Borrower and Parent release Agent makes no express or implied warranty regarding such Platform or the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no Lenders from any liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the gross negligence or willful misconduct of the Agent as determined by a court of competent jurisdiction in a final and nonappealable judgmentconnection therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. Borrower will deliver or cause to be delivered to Agent which Agent shall promptly deliver to each Lender:
(a) 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 Borrower, commencing with the fiscal year ending December 31, 2021year, the audited Consolidated balance sheet of the Borrower Parent Guarantor and its Subsidiaries at the end of such fiscal year, and the related audited Consolidated statements of income, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied by an auditor’s report and opinion prepared without qualification as to the scope of the audit by a "Big Four" accounting firm KPMG or another nationally recognized firm acceptable to the Agent (the foregoing with respect to the Borrower may be satisfied by delivery of the Form 10-K of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Ks or Proxy Statements which may be incorporated by reference within the filings then being delivered to Agent be deemed delivered to Agent nor shall any such information contained in any such prior filings be deemed delivered to Agent)accounting firm, and any other information the Agent may reasonably request to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each fiscal quarter (including or ninety (90) days in the fourth quartercase of fiscal year end) of the Borrowereach fiscal year, copies of the unaudited Consolidated balance sheet of the Borrower Parent Guarantor and its Subsidiaries as at the end of such fiscal quarter, and the related unaudited Consolidated statements of income and cash flows for the portion of the BorrowerParent Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in all material respects in accordance with GAAP (the foregoing with respect to the Borrower and its Subsidiaries for the first three quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of the Borrower filed with the SEC; provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements which may be incorporated by reference within the filings then being delivered to Lender be deemed delivered to Lender nor shall any such information contained in any such prior filings be deemed delivered to Lender)GAAP, together with a certification on behalf of Borrower by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower Parent Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above a statement (a “Compliance Certificate”) certified on behalf of Parent Guarantor by the chief financial officer an Authorized Officer of the Borrower or its Vice President – Finance Parent Guarantor in the form of Exhibit F G hereto (or in such other form as the Agent may reasonably approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in Section 9.1 and the other covenants described in such certificate, including, without limitation, a listing of each Unencumbered Property, and (if applicable) setting forth reconciliations to reflect material changes in GAAP since the Effective Date§9. All income, expense expense, debt and value associated with Real Estate or other Investments acquired or disposed of or added during any fiscal quarter will be added or eliminated from or added tocalculations, as the case may be, such calculationson a Pro Forma Basis, where applicable. The Compliance Certificate shall be accompanied by a copy copies of the statement statements of the Unencumbered Property Net Operating Income Consolidated Asset NOI for such fiscal quarter for each of the Unencumbered Properties as Assets, prepared on a group, basis materially consistent with the statements furnished to Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification on behalf of Parent Guarantor by the chief financial officer of the Borrower or its Vice President – Finance an Authorized Officer that the information contained in such statement fairly presents the Unencumbered Property Net Operating Income in all material respects Consolidated Asset NOI of the Unencumbered Properties Assets for such periodperiods;
(d) contemporaneously promptly upon Borrower becoming aware of any change in the Parent Guarantor’s Debt Rating or any other credit rating given by any Rating Agency or any announcement that any such rating is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by any Rating Agency, notice of such change, announcement or action;
(e) simultaneously with the delivery of the financial statements referred to in clause subsections (a) and (b) above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more (i) a Rent Roll for each of the Borrower Unencumbered Assets and its Subsidiaries which are not reflected a summary thereof in such financial statements or referred form reasonably satisfactory to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect Agent as of the indebtedness end of otherseach fiscal quarter (including the fourth calendar quarter in each year), and obligations to reimburse the issuer in respect of any letters of credit);
(eii) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the shareholders an operating statement for each of the BorrowerUnencumbered Assets for each such fiscal quarter and year to date and a consolidated operating statement for the Unencumbered Assets for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), including (if requested by Agent) a receivables aging report, it being agreed that the forms of the Rent Rolls and the operating statements being provided under the Existing Credit Agreement are satisfactory;
(f) promptly after simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, upon reasonable request by Agent, a Rating Agency shall have announced a change in statement (i) listing the rating established Unencumbered Assets owned by Borrower or deemed to have been established any of its Subsidiaries including the property name, location, number of units, Total Consolidated Operating Property Value (including the applicable methodology for the Index Debtcalculating value), written notice of such rating changeand any applicable indebtedness secured thereby;
(g) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent)[Reserved];
(h) upon reasonable request by the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Properties;
(i) not later than November 15 of each year, the Consolidated cash flow projections of the Borrower for the next three years;
(j) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries Loan Parties (including without limitation finalized auditors’ management letters, status of material litigation or material investigations against the Borrower or its Subsidiaries Loan Parties and any settlement discussions relating theretothereto (unless the Loan Parties in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports with respect to the Unencumbered Assets and information as to zoning and other legal and regulatory changes affecting the Borrower or its SubsidiariesUnencumbered Assets) as Agent or any of the Agent Lenders may reasonably request. Information concerning such litigation or settlement discussions shall not include attorney-client privileged communications, but shall otherwise include information which Any material to be delivered pursuant to this §7.4 may be confidential delivered electronically directly to Agent or subject made available to Agent pursuant to an accessible website and Lenders provided that such material is in a work-product privilege so that the Agent and the Lenders receive the same level of disclosure from the Borrower with respect format reasonably acceptable to such matters as has been made prior to the Effective Date; and
(k) promptly upon their becoming available, copies of all registration statements, filingsAgent, and regular periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form 10-K and Form 10-Q filed with the Commission. Notwithstanding anything to the contrary in this Section 8.1 or in Section 8.2, any Form 10-K, Form 10-Q, Form 8-K, registration statement or other information described in this Section 8.1 or in Section 8.2 such material shall be deemed to have been delivered to the Agent and Lenders upon Agent’s receipt thereof or access to the Lenders if website containing such Form 10-Kmaterial. Upon the request of Agent, Form 10-Q, Form 8-K, registration statement or other information is filed or furnished by the Borrower with the SECLoan Parties shall deliver paper copies thereof to Agent and Lenders. If The Loan Parties authorize Agent and Arrangers to disseminate any such information is not filed materials through the use of Intralinks, SyndTrak or furnished by the Borrower with the SEC, such information shall be deemed delivered to the Agent upon the Agent's receipt of such information from the Borrower (which information may be in electronic form provided that such electronic form is reasonably acceptable to the Agent). The Agent shall distribute any such non-SEC filed or furnished information to the other Lenders, and may do so by electronic form including by posting such information on an electronic platform (a “Platform”) (including, without limitation, Syndtrak Online, IntraLinks or such other electronic platforms as the Agent may elect from time to time). Any Platform shall be provided on an "as is" and "as available" basisinformation dissemination system, and the Loan Parties release Agent makes no express or implied warranty regarding such Platform or and Lenders from any liability in connection therewith (other than the accuracy or completeness of any information posted thereto or contained thereon and the Agent shall have no liability of any nature whatsoever to any Lender, Borrower or other Person (whether sounding in tort, contract or otherwise) with respect to such Platform or any such information (including any information referred to in Section 8.2 below), except to the extent such liability results from the based on Agent’s gross negligence or willful misconduct misconduct). Delivery of a copy of the Agent annual or quarterly, as determined by a court applicable, financial statements of competent jurisdiction in a final Parent Guarantor filed with the Securities and nonappealable judgmentExchange Commission shall satisfy the requirements of §7.4(a) or §7.4(b), as applicable.
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