Financial Statements, Certificates and Information. Ryder will deliver to each of the Banks, the Issuing Bank and the Agents: (a) as soon as practicable, but, in any event not later than one hundred twenty (120) days after the end of each fiscal year of Ryder, the consolidated balance sheet of Ryder and its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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. In addition, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default; (b) as soon as practicable, but in any event not later than sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of Ryder, copies of the consolidated balance sheets of Ryder and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial officer of Ryder that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended; (c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein; (d) as soon as practicable but, in any event, within thirty (30) Business Days after the issuance thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generally; and (e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty eighty (12080) days after the end of each fiscal year of Ryderthe Parent, other than as set forth in §9.4(f) as it relates to audited financial statements for the fiscal year ended February 29, 2004, the audited consolidated balance sheet of Ryder the Parent and its Consolidated Subsidiaries subsidiaries, as at the end of such year, and the related audited consolidated statements of income and audited consolidated statements of cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedflow, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited and accompanied the requirements of the Securities and Exchange Commission (the “SEC”), and certified without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of the Subsidiaries to continue as going concerns, by a report and opinion of Ernst & Young LLP or by other independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 reasonably satisfactory to the scope of such audit. In additionAdministrative Agent, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault related to or arising from accounting matters, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty fifty (6050) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Parent, copies of the unaudited consolidated balance sheets of Ryder the Parent and its Consolidated Subsidiaries subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year quarter then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and SEC requirements, together with a certification by the principal financial or accounting officer of Ryder the Borrower that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) position of the Parent, the Borrower and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business their respective subsidiaries on the date thereof and the results of operations for the period then ended(subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a certificate statement certified by the principal financial or accounting officer of the Borrower in substantially the form of Exhibit C E hereto (the a “Compliance Certificate”) signed by and certifying that no Default or Event of Default is then continuing or describing the principal financial officer, treasurer nature and duration of any then continuing Default or assistant treasurer Event of Ryder, stating that Ryder Default and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance with the covenants contained in §11 and certifying (iif applicable) no Default or Event of Default exists or if a Default or Event of Default shall then existreconciliations to reflect changes in GAAP since the Balance Sheet Date, specifying the nature thereof and (ii) a schedule in form and detail reasonably satisfactory to the Administrative Agent of computations of Consolidated Operating Cash Flow and other financial covenant-related calculations prepared by the principal financial or accounting officer of the Borrower detailing the adjustments made to exclude Excluded Subsidiaries from such other matters as are set forth thereincomputations;
(d) as soon as practicable but, promptly upon completion thereof and in any event, within thirty event no later than eighty (3080) Business Days days after the issuance thereofbeginning of each fiscal year of the Borrower, copies the Borrower’s annual operating budget in the form of all material consolidated financial projections for such fiscal year and prepared on a quarterly basis and setting forth projected operating results for each quarter in such fiscal year and for the fiscal year as a whole, including projections of operating cash flow together with a financial nature filed with quarterly itemization of estimated taxes and Capital Expenditures for such fiscal year, which are prepared on the Securities and Exchange Commission or sent to the stockholders basis of Ryder or any of its Subsidiaries generally; andreasonable assumptions;
(e) from time to time, and with reasonable promptness, time such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests the condition or directivesoperations, whether financial or not having otherwise, of the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request thereforParent, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank Borrower and the Agents have access subsidiaries, including Excluded Subsidiaries (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iincluding accountants’ management letters) Ryder shall deliver paper copies of such documents to as the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by Lender may reasonably request; and
(f) within five (5) days from the Administrative Agent or such Bank and (ii) Ryder shall notify Funding Date, the Administrative Agent and each Bank (by telecopier or electronic mail) audited consolidated balance sheet of the posting Parent, the Borrower and its subsidiaries, as at the Balance Sheet Date, and the related consolidated statements of any such documents income and provide cash flow for the fiscal year then ended, in each case, certified by both the Parent’s independent certified public accountants and an authorized officer of the Borrower. Such balance sheet and statement of income and cash flow shall not be materially different from the financials delivered to the Administrative Agent by electronic mail electronic versions (i.e.Lenders on the Funding Date in accordance with §12.8 and shall have been prepared in accordance with GAAP and shall fairly present in all material respects the financial condition of the Parent, soft copies) the Borrower and its subsidiaries, as at the close of such documentsbusiness on the Balance Sheet Date and the results of operations for the fiscal year then ended. Notwithstanding anything contained herein, in every instance Ryder There shall be required to provide paper copies no contingent liabilities of the Compliance Certificates required by §8.4(c) to the Administrative Agent. Except for such Compliance CertificatesParent, the Administrative Agent shall have no obligation to request the delivery Borrower or to maintain copies any of its subsidiaries, as of the documents referred Funding Date involving material amounts, known to aboveany officer of the Parent, and in any event shall have no responsibility to monitor compliance by Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged Subsidiaries not disclosed in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that balance sheet dated the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank Balance Sheet Date and the Banks to treat such Borrower Materials as not containing any material non-public information with respect related notes thereto other than contingent liabilities disclosed to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth Lenders in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationwriting.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Operating Co)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrower, the consolidated balance sheet of Ryder the Borrower and its Consolidated Subsidiaries as at of the end of such year, and the related consolidated statements statement of income and consolidated statement of cash flows flow for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards accounting principles, and shall not be subject certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or by other independent certified public accountants satisfactory to any “the Agents, reported on without a "going concern” " or like qualification or exception exception, or any qualification or exception as to indicating that the scope of the audit was inadequate to permit such audit. In additionindependent certified public accountants to certify such financial statements without such qualification, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they nothing shall have obtained no knowledge of come to their attention indicating that any Default or Event of DefaultDefault shall exist, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60i) with respect to the first two fiscal quarters of the Borrower ending after the Closing Date, fifty (50) days after the end of each of the first three such two fiscal quarters of the Borrower and (ii) with respect to any other fiscal quarters of the Borrower, forty-five (45) days after the end of each such fiscal year quarter of Ryderthe Borrower, copies of the unaudited consolidated balance sheets sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements statement of income and consolidated statement of cash flows flow for the portion of the Borrower's fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) generally accepted accounting principles, together with a certification by the principal financial or accounting officer of Ryder the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event not later than (i) with respect to the first three months ending after the Closing Date, forty (40) days after the end of each such three months and (ii) with respect to any other month in each fiscal year, thirty (30) days after the end of each such month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements are of the Borrower and its Subsidiaries for such month prepared in accordance with GAAP (to generally accepted accounting principles, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statements) and or accounting officer of the Borrower that the information contained in such financial statements fairly present presents the consolidated financial condition of Ryder the Borrower and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to quarterly and the results of operations for the period then endedyear-end adjustments);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate statement certified by the principal financial or accounting officer of the Borrower in substantially the form of Exhibit C J hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof covenants contained in ss.13 and (iiif applicable) such other matters as are set forth thereinreconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) as soon as practicable but, in any event, within thirty (30) Business Days after contemporaneously with the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generally; andthe Borrower;
(ef) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documentsduring the period through June 30, or provides a link thereto on its website on 1997, thirty (30) days after the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet websiteend of each calendar month, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify during the Administrative Agent period after June 30, 1997, fifteen (15) days after the end of each calendar month, or at such earlier time as the Agents may reasonably request, (A) a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agents, and each Bank (by telecopier or electronic mailB) a Consigned Precious Metal Report setting forth (1) the amount of Consigned Precious Metal and Borrower's Precious Metal as of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) end of such documents. Notwithstanding anything contained hereincalendar month or other date so requested by the Agents, and (2) a calculation of the Consignment Advance Rate Percentage multiplied by the Fair Market Value of the sum of (y) Borrower's Precious Metal plus (z) Consigned Precious Metal as of the end of such calendar month or other date so requested by the Agents, in every instance Ryder shall each case together with supporting schedules and documentation, with each such Borrowing Base Report and Consigned Precious Metal Report to be required to provide paper copies accompanied by a certification by the principal financial or accounting officer of the Compliance Certificates required by §8.4(cBorrower that the information contained therein is true and accurate in all material respects;
(g) within thirty (30) days after the end of each calendar month, an Accounts Receivable aging report;
(h) on or prior to the Administrative Agent. Except for such Compliance CertificatesSeptember 30 of each calendar year, the Administrative Agent shall have no obligation to request the delivery or to maintain copies projections of the documents referred to above, Borrower and in any event shall have no responsibility to monitor compliance by Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available Subsidiaries updating those projections delivered to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish referred to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationss.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Gold Consignment Agreement (Commemorative Brands Inc)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsAgent:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Trust, the audited consolidated balance sheet of Ryder the Trust and its Consolidated Subsidiaries as at the end of such year, and the related audited consolidated statements of income income, changes in shareholder’s equity and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants (and the Borrower also shall deliver the foregoing for FPLP on a report consolidated basis); together with (i) a certification by the principal financial or accounting officer of the Borrower and opinion the Trust that the information contained in such financial statements fairly presents the financial position of independent certified public accountants the Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-K of nationally recognized standing selected by Ryder, which report the Trust filed with the SEC for such period and opinion shall be prepared 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 delivered to the scope of such audit. In addition, within one hundred twenty Agent) and (120ii) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault under §10 or otherwise under the provisions of this Agreement relating to the financial condition of the Trust or any of its Subsidiaries, or of any facts or circumstances that would cause the Trust not to continue to qualify as a REIT for federal income tax purposes, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Default, Event of Default or such facts or circumstances, they shall disclose make disclosure thereof in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Defaultstatement;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three its March 31, June 30 and September 30 fiscal quarters of each fiscal year of Ryderquarters, copies of the unaudited consolidated balance sheets sheet of Ryder the Trust and its Consolidated Subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income income, changes in shareholders’ equity and cash flows for the portion of the Trust’s fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the extent GAAP is applicable to interim unaudited financial statements) Agent), together with a certification by the principal financial or accounting officer of Ryder the Borrower and the Trust that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) and fairly present position of the consolidated financial condition of Ryder Trust and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the Agent) (subject to year-end adjustments none of which shall be materially adverse and the results absence of operations footnotes) (and the Borrower also shall deliver the foregoing for the period then endedFPLP on a consolidated basis);
(c) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate Certificate of Compliance in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal chief financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as accounting officer of the end of the applicable period Borrower, and setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof and (ii) such other matters as are set forth thereincovenants contained in §10;
(df) promptly as soon as practicable butthey become available, a copy of each report submitted to the Borrower, the Trust or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in connection with any eventinterim audit thereof pertaining to any phase of the business of the Borrower, within thirty the Trust or any such Subsidiary;
(30g) Business Days after contemporaneously with (or promptly after) the issuance filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower or any Subsidiary Guarantor for borrowed money (other than the Loans), 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, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group;
(h) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders of Ryder the Trust;
(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, copies of the Form 10-K statement filed by the Trust 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 the Trust copies of the Form 10-Q statement filed by the Trust 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, the Trust shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not later than thirty (30) days prior to the end of each of their respective fiscal years, a business plan for the next fiscal year (including pro forma projections for such period);
(k) if requested by the Agent, a certification by the chief financial or accounting officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries generallyas of the end of any applicable fiscal year; and
(el) from time to time, and with reasonable promptness, time such other financial data and other information about the Borrower, the Trust, the Subsidiary Guarantors, their respective Subsidiaries, the Real Estate Assets (including the Eligible Borrowing Base Properties), the Pledged Interests and the Partially-Owned Entities as the Banks Agent or any Lender (through the Agent) may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any Without limitation of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is at the issuer request 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 Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect will deliver to the Borrowers or their respective securities for purposes of United States Federal and state securities laws Agent information relating to (provided, however, that to i) the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion determination of the Platform designated “Public Side Information;” existence or absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii) title to any Eligible Borrowing Base Property, (iii) the Property Level Loan Documents and Property Level Debt, and (ziv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationinsurance coverage.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Secured Term Loan Agreement (First Potomac Realty Trust)
Financial Statements, Certificates and Information. Ryder The Borrowers will deliver to each of the BanksAdministrative Agent (for posting to the Lenders), the Issuing Bank and the Agentsfollowing:
(a) as soon as practicable, but, in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Parent, the consolidated balance sheet sheets of Ryder the Parent and its Consolidated Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedoperations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied certified by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryderthe Accountants, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like 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 audit. In addition, within one hundred twenty qualification or exception as to scope is based upon or results from any limitations imposed by the Borrowers or any action (120or inaction) days of the end of each such fiscal year, Ryder shall provide the Banks Borrowers with a written statement from such accountants respect to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;applicable audit.
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Parent, copies of the consolidated balance sheets and statement of Ryder operations of the Parent and its Consolidated Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of Ryder the Borrowers (the “CFO” or “CAO”) that the such consolidated financial statements are were prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present in all material respects the consolidated financial condition of Ryder the Borrowers and its Consolidated their Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred , subject to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the year-end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein;
(d) as soon as practicable but, in any event, within thirty (30) Business Days after the issuance thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank adjustments and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies absence of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Informationfootnotes;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty eighty (12080) days after the end of each fiscal year of Ryderthe Parent, the audited consolidated balance sheet of Ryder the Parent and its Consolidated Subsidiaries subsidiaries, as at the end of such year, and the related audited consolidated statements of income and audited consolidated statements of cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedflow, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements (i) to be in reasonable detail, prepared, prepared in accordance with GAAP audited and accompanied the requirements of the Securities and Exchange Commission (the “SEC”) and (ii) to be certified without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of the Subsidiaries to continue as going concerns, by a report and opinion of Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent (provided that the absences of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such qualification or expression shall not be subject required with respect to any “going concern” or like qualification or exception or any qualification or exception as year prior to the scope of such audit. In additionfiscal year ending February 28, within one hundred twenty (120) days of the end of each such fiscal year2013), Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault related to or arising from accounting matters, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(bi) as soon as practicable, but in any event not later than sixty fifty (6050) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Parent, copies of the unaudited consolidated balance sheets of Ryder the Parent and its Consolidated Subsidiaries subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year quarter then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and SEC requirements, together with a certification by the principal financial or accounting officer of Ryder the Borrower that the consolidated information contained in such financial statements are fairly presents the financial position of the Parent, the Borrower and their respective subsidiaries on the date thereof (subject to year-end adjustments);
(ii) during the Suspension Period, as soon as practicable, but in any event not later than thirty (30) days after the end of each month, copies of the unaudited consolidated balance sheets of the Parent and its subsidiaries as at the end of such month, and the related consolidated statements of income for the fiscal month then ended, all in reasonable detail and prepared in accordance with GAAP (to GAAP, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statements) or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Parent, the Borrower and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business their respective subsidiaries on the date thereof (subject to year-end and the results of operations for the period then endedquarter-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (bb)(i) above, (i) a certificate statement certified by the principal financial or accounting officer of the Borrower in substantially the form of Exhibit C E hereto or any other form acceptable to the Administrative Agent (the a “Compliance Certificate”) signed by and certifying that no Default or Event of Default is then continuing or describing the principal financial officer, treasurer nature and duration of any then continuing Default or assistant treasurer Event of Ryder, stating that Ryder Default and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance with the covenants contained in §11 and certifying (iif applicable) no Default or Event of Default exists or if a Default or Event of Default shall then existreconciliations to reflect changes in GAAP since the Balance Sheet Date, specifying the nature thereof and (ii) a schedule in form and detail reasonably satisfactory to the Administrative Agent of computations of (x) Consolidated Net Income (along with a schedule that reconciles the net income (or loss) of the Parent and its subsidiaries on a consolidated basis to the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis) and (y) Consolidated EBITDA and other financial covenant-related calculations detailing the adjustments made to exclude Excluded Subsidiaries from such other matters computations, in each case, prepared by the principal financial or accounting officer of the Borrower, (iii) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent of the amount of cash and cash equivalents as are set forth thereinof the end of such fiscal quarter in each of the Parent's, the Borrower's and each of the Subsidiary's deposit accounts and securities accounts, (iv) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent tracking and detailing the existing Investments made pursuant to the terms of §10.3(j) and the replenishment in accordance with the terms of the definition of Investment and (v) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent tracking and detailing the Distributions of the Borrower made to the Parent and the reasons therefor;
(d) as soon as practicable but, promptly upon completion thereof and in any event, within thirty event no later than eighty (3080) Business Days days after the issuance thereofbeginning of each fiscal year of the Borrower, copies the Borrower’s annual operating budget in the form of all material consolidated financial projections for such fiscal year and prepared on a quarterly basis and setting forth projected operating results for each quarter in such fiscal year and for the fiscal year as a whole, including projections of operating cash flow together with a financial nature filed with quarterly itemization of estimated taxes and Capital Expenditures for such fiscal year, which are prepared on the Securities and Exchange Commission or sent to the stockholders basis of Ryder or any of its Subsidiaries generallyreasonable assumptions; and
(e) from time to time, and with reasonable promptness, time such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, (including, without limitation, accountants’ management letters) with respect to requests the condition or directivesoperations, whether financial or not having otherwise, of the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request thereforParent, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank Borrower and the Agents have access subsidiaries (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iincluding Excluded Subsidiaries) Ryder shall deliver paper copies of such documents to as the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) Lender may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationreasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Financial Statements, Certificates and Information. Ryder The REIT and Borrowers will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty (120) 90 days after the end of each fiscal year of Ryderthe REIT and the Borrowers, the audited consolidated and consolidating balance sheet sheets of Ryder the REIT, the Borrowers and its Consolidated their Subsidiaries as at the end of such year, and the related audited consolidated and consolidating statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards accounting principles, and shall not be subject accompanied by an auditor's report prepared without qualification by KPMG LLP or by another "Big Five" accounting firm and any other reasonable information the Lenders may need to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit. In addition, within one hundred twenty (120) days complete a financial analysis of the end of each such fiscal yearBorrowers and the other Obligors, Ryder shall provide the Banks together with (i) a written statement from such accountants to the effect that they have read a copy caused this Agreement to be reviewed and that in the course of this Agreement, and that, in making the examination necessary their audit no facts have come to said certification, they have obtained no knowledge of their attention that cause them to believe that any Default or Event of Default, Default under Section 9 exists or, if such accountants shall have obtained knowledge of any then existing is not the case, specifying such Default or Event of Default they shall disclose in and the nature thereof (such statement to be furnished by such accountants with the understanding that the examination of such accountants cannot be relied upon to give such accountants knowledge of any such Default or Event of Default; provided Default except as it relates to accounting or auditing matters within the scope of their audit), and (ii) the unaudited consolidating balance sheets of the REIT, Borrowers and their Subsidiaries at the end of such year and the related unaudited consolidating statements of income for such year, each setting -61- forth in comparative form the figures for the previous fiscal year, all such statements to be in reasonable detail and accompanied by a certification by the principal financial or accounting officer of the REIT that the information contained in such accountants shall not be liable to consolidating financial statements fairly presents the Banks for failure to obtain knowledge financial position of any Default or Event of Default;the REIT, the Borrowers and their Subsidiaries on the date thereof,
(b) as soon as practicable, but in any event not later than sixty (60) 45 days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe REIT, copies of the unaudited consolidated and consolidating balance sheets of Ryder the REIT, the Borrowers and its Consolidated their Subsidiaries as at the end of such quarter, and the related unaudited consolidated and consolidating statements of income and the related unaudited consolidated and consolidating cash flows for the portion of the REIT's fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles (to the extent GAAP is applicable to interim unaudited financial statements) except for provisions for footnotes), together with a certification by the principal financial or accounting officer of Ryder the REIT that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) position of the REIT, the Borrowers and fairly present the consolidated financial condition of Ryder and its Consolidated their Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the REIT (including the fourth fiscal quarter in each year), copies of a report, prepared on a basis consistent with the statement furnished pursuant to Section 7.4(a) as to Funds From Operations, the Adjusted Net Operating Income, the Borrowing Base Net Operating Income, capital expenditures and occupancy status for each parcel of Real Estate owned by the Borrowers and their respective Subsidiaries (excluding Development Assets and Land Assets) together with a certification by each Borrower's treasurer, assistant treasurer or other financial officer that the information contained in such report fairly presents in all material respects the results of operations of said parcels of Real Estate for the such period then ended(subject to year-end adjustments);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein;
(d) as soon as practicable but, in any event, within thirty (30) Business Days after the issuance thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) above, and at the other times specified herein, a statement (a "Compliance Certificate") certified by the principal financial or accounting officer of the REIT and the principal financial or accounting officer of each Borrower in the form of Exhibit I hereto setting forth in reasonable detail a computation of the Borrowing Base Availability as of the date of such financial statements and computations evidencing compliance with the covenants contained in Section 9 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the extent any such documents are included in materials otherwise Balance Sheet Date;
(e) contemporaneously with the filing or mailing thereof, copies of all Reports on Form 8-K, 10-K or 10-Q, all registration statements and all other material of a financial nature filed with the Securities and Exchange CommissionSEC by the REIT, the Borrowers or any of their Subsidiaries;
(f) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored when requested by the Administrative Agent); provided that: , copies of all annual federal income tax returns and amendments thereto of the REIT, the Borrowers and the other Obligors;
(g) when requested by the Administrative Agent, copies of other periodic income statements prepared by each Borrower for each Borrowing Base Property and for each other parcel of Real Estate included in the determination of Combined Total Asset Value;
(h) when requested by the Administrative Agent, a certificate of the REIT evidencing that the REIT is a real estate investment trust within the meaning of section 856 of the Code;
(i) Ryder shall deliver paper copies not later than February 28 of such documents to each year, the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (by telecopier or electronic mail) of the posting of any such documents and Borrowers will provide to the Administrative Agent by electronic mail electronic versions (i.e.and the Lenders an annual business plan, soft copies) of such documents. Notwithstanding anything contained herein, in every instance Ryder shall be required to provide paper copies setting forth their projected business prospects for the upcoming year and setting forth the financial projections of the Compliance Certificates required by §8.4(cBorrowers, including projected income statements and year-end balance sheet, for the upcoming year;
(j) not later than ten days following the occurrence thereof, written notification of each event permitted under Section 8.4 which has a value equal to or greater than $15,000,000 describing such event in reasonable detail;
(k) from time to time promptly following 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks 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, such evidence as the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information Administrative Agent may request with respect to the continued compliance of the Borrowing Base Properties with the requirements of Eligible Real Estate (except that such evidence shall not be requested more than once in any fiscal year of the Borrowers or unless an Event of Default shall have occurred and be continuing);
(l) from time to time promptly following the reasonable request of the Administrative Agent, calculations of the Borrowing Base Availability at the time in effect (in the form provided in the Compliance Certificate);
(m) contemporaneously with their respective securities for purposes of United States Federal and state securities laws (provided, however, that delivery to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion holders of the Platform designated “Public Side Information;” Surviving Debt, copies of all financial information and reports provided under the Surviving Debt Agreements; and
(zn) from time to time such other financial data and information in the possession of the REIT, any Borrower or other Obligor (including without limitation auditors' management letters, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the REIT, any Borrower or any of their Subsidiaries) as the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationmay reasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (Heritage Property Investment Trust Inc)
Financial Statements, Certificates and Information. Ryder will deliver to each of the Banks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, in any event not later than one hundred twenty (120) days after the end of each fiscal year of Ryder, the consolidated balance sheet of Ryder and its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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. In addition, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then then-existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of Ryder, copies of the consolidated balance sheets of Ryder and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial officer of Ryder that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein;
(d) as soon as practicable but, in any event, within thirty (30) Business Days after the issuance thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Co-Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Co-Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Co-Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Financial Statements, Certificates and Information. Ryder The Borrowers will deliver to the Administrative Agent and each of the Banks, Lenders the Issuing Bank and the Agentsfollowing:
(a) as soon as practicable, but, in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrowers, the consolidated balance sheet sheets of Ryder the Borrowers and its Consolidated their Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedoperations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied Certified by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 auditAccountants. In addition, within one hundred twenty (120) days of simultaneously therewith, the end of each such fiscal year, Ryder shall Borrowers will use their best efforts to provide the Banks Lenders with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreementthe Borrowers are in compliance with the covenants set forth in ss.9 hereof, and that, in making the thE examination necessary to said certification, they have obtained no knowledge nothing has come to the attention of such Accountants that would indicate that any Default or Event of DefaultDefault exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided PROVIDED, that such accountants Accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal year of RyderBorrowers, copies of the consolidated balance sheets and statement of Ryder operations of the Borrowers and its Consolidated their Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of Ryder the Borrowers (the "CFO") that the such consolidated financial statements are were prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder the Borrowers and its Consolidated their Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, (i) a certificate statement in the form of Exhibit EXHIBIT C hereto (the “Compliance Certificate”"COMPLIANCE CERTIFICATE") signed certified by the principal financial officer, treasurer or assistant treasurer of Ryder, stating CFO that Ryder and its Consolidated Subsidiaries the Borrowers are in compliance with §10 the covenants contained in ss.7, ss.8 and ss.9 hereof as As of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance compliance, PROVIDED that, if the Borrowers shall at the time of issuance of such certificate or at any other time obtain knowledge of any Default or Event of Default, the Borrowers will include in such Compliance Certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and certifying (i) no period of existence thereof and what action the Borrowers propose to take with respect thereto and attaching, in the event such Default or Event of Default exists or if relates to Environmental Matters, a Default or Event of Default shall then exist, specifying certificate in the nature thereof and form attached hereto as EXHIBIT D (ii) such other matters as are set forth thereinthe "ENVIRONMENTAL COMPLIANCE CERTIFICATE");
(d) as soon as practicable butcontemporaneously with, in any eventor promptly following, within thirty (30) Business Days after the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder the Parent or any of its the Borrowers to the extent the same are not available on ▇▇▇▇▇;
(e) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, copies of the Borrowers' revenue, EBITDA and pre-tax reports, all in reasonable detail and prepared in accordance with GAAP;
(f) as soon as practicable, but in any event not later than fifteen (15) days prior to the commencement of each fiscal year of the Borrowers and the Excluded Subsidiaries, a copy of the annual budget, projections and business plan for the Borrowers and the Excluded Subsidiaries generallyfor such fiscal year; and
(eg) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants' management letters) as the Banks Lenders may reasonably request. The Borrowers hereby authorize each Bank the Lenders to disclose any information obtained pursuant to this Credit Agreement to all appropriate governmental regulatory authorities where required by Lawlaw; PROVIDED, includingHOWEVER, without limitation, with respect to requests or directives, whether or not having that the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank Lenders shall, to the extent practicable and legally permissibleallowable under law, provide prompt written notice notify the Borrowers within a reasonable period prior to Ryder so that Ryder may have the opportunity to contest time any such disclosure is made; and such Agent or Bank or the Issuing Bank PROVIDED FURTHER, this authorization shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 not be deemed to have been delivered on be a waiver of any rights to object to the date (i) on which Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored disclosure by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (by telecopier or electronic mail) of the posting Lenders 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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery information which any Borrower has or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish under the federal Right to receive material non-public information with respect Financial Privacy Act of 1978, as in effect from time to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationtime.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Financial Statements, Certificates and Information. Ryder The Borrowers will deliver to each of the Banks, the Issuing Bank Administrative Agent and the AgentsLenders the following:
(a) as soon as practicable, but, in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrowers, the consolidated balance sheet sheets of Ryder the Parent and its Consolidated Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedoperations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied certified by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryderthe Accountants, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like similar qualification or exception (other than any such qualification that is based solely upon the Indebtedness hereunder or under the Second Lien Notes Documents or the Senior Subordinated Debt becoming current as a result of not having refinanced such Indebtedness prior to the date which is one year before the respective maturity dates thereof, as applicable) 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 the Borrowers or any action (or inaction) of the Borrowers with respect to the applicable audit. In addition, within one hundred twenty (120) days of simultaneously therewith, the end of each such fiscal year, Ryder shall Borrowers will use their best efforts to provide the Banks Lenders with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreementthe Borrowers are in compliance with the financial covenants set forth in Section 7.11, and that, in making the examination necessary to said certification, they have obtained no knowledge nothing has come to the attention of such Accountants that would indicate that any Default or Event of DefaultDefault exists, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided provided, that such accountants Accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Borrowers, copies of the consolidated balance sheets and statement of Ryder operations of the Parent and its Consolidated Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of Ryder the Borrowers (the “CFO”) that the such consolidated financial statements are were prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder the Borrowers and its Consolidated their Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed Certificate certified by the principal financial officerCFO that no Default or Event of Default exists as of the end of the applicable period, treasurer or assistant treasurer of Ryder, stating and that Ryder and its Consolidated Subsidiaries the Borrowers are in compliance with §10 hereof the covenants contained in Section 7.11 as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance compliance, provided that, if the Borrowers shall at the time of issuance of such certificate or at any other time obtain knowledge of any Default or Event of Default, the Borrowers will include in such Compliance Certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and certifying (i) no period of existence thereof and what action the Borrowers propose to take with respect thereto and attaching, in the event such Default or Event of Default exists or if a Default or Event of Default shall then existrelates to environmental matters, specifying the nature thereof and (ii) such other matters as are set forth thereinan Environmental Compliance Certificate;
(d) as soon as practicable butcontemporaneously with, in any eventor promptly following, within thirty (30) Business Days after the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission SEC (including any copies of notices or other correspondence (other than immaterial notices or correspondence) received from the SEC concerning any investigation or other inquiry regarding financial or other operational results of any Borrower) or sent to the stockholders of Ryder the Parent or any of its Subsidiaries generally; andthe Borrowers to the extent the same are not available on ▇▇▇▇▇;
(e) as soon as practicable, but in any event not later than thirty (30) days after the commencement of each fiscal year of the Borrowers and the Non-Borrower Subsidiaries, a copy of the annual budget, projections and business plan for the Borrowers and the Non-Borrower Subsidiaries for such fiscal year;
(f) promptly after the furnishing thereof, (i) copies of any documentation furnished to any holder of the Second Lien Notes or to any trustee for their benefit pursuant to the terms of the Second Lien Notes Indenture and not otherwise required to be furnished to the Administrative Agent and the Lenders pursuant to this Section and (ii) copies of any notices furnished by the trustee under the Second Lien Notes to any Borrower pursuant to the Second Lien Notes Indenture and not otherwise required to be furnished to the Administrative Agent and the Lenders pursuant to this Section (including copies of any notices, requests, amendments, waivers or other modifications so given or received under or pursuant to the Second Lien Notes Documents regarding any breach or default by any party thereto or regarding any other event that could materially impair the rights of any Borrower or otherwise could have a Material Adverse Effect);
(g) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants’ management letters, audit reports or recommendations regarding internal controls provided by the Accountants to the board of directors of the Parent, or any committee thereof) as the Banks Lenders may reasonably request; and
(h) simultaneously with the delivery of the financial statements referred to in clauses (a) and (b) above, the Borrower shall provide the Administrative Agent with an updated copy of Schedule 5.13(a) or shall certify that Schedule 5.13(a) is true and correct on and as of the date of such delivery. The Borrowers hereby authorize each Bank the Lenders to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities Governmental Authorities where required by Applicable Law; provided, includinghowever, without limitation, with respect to requests or directives, whether or not having that the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank Lenders shall, to the extent practicable and legally permissibleallowable under Applicable Law, provide prompt written notice notify the Borrowers within a reasonable period prior to Ryder so that Ryder the time any such disclosure is made; and provided further, this authorization shall not be 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 opportunity federal Right to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law Financial Privacy Act of 1978, as in effect from time to maintain the confidentiality of such Informationtime. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) this Section (to the extent any such documents are included in materials otherwise filed with the Securities SEC and Exchange Commissionavailable in ▇▇▇▇▇) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Ryder posts the Borrowers post such documents, or provides provide a link thereto on its the Borrowers’ website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇the website address listed on Schedule 10.02; or (ii) on which such documents are posted on Ryder’s the Borrowers’ behalf on an Internet or intranet website, if any, to which each Bank Lender and the Agents Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Bank Lender that requests Ryder the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank Lender and (ii) Ryder the Borrowers shall notify the Administrative Agent and each Bank 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 Ryder the Borrowers shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder the Borrowers with any such request for delivery, and each Bank Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Each Borrower The Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers Arranger will make available to the Banks Lenders and the Issuing Bank L/C Issuer materials and/or information provided by or on behalf of such Borrower the Borrowers hereunder (collectively, the “Borrower Borrowers’ Materials”) by posting the Borrower Borrowers’ Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks Lenders (each, a “Public BankLender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, foregoing and who may be engaged in investment and other market-related activities with respect to such Persons’ Person’s securities. Each Borrower The Borrowers hereby agrees agree that so long as such Borrower is they will use commercially reasonable efforts to identify that portion of the issuer of any outstanding debt or equity securities Borrowers’ materials that are registered or issued pursuant may be distributed to a private offering or is actively contemplating issuing any such securities Public Lenders and that (w) all Borrower Borrowers’ Materials that are to be made available to Public Banks 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 Borrowers’ Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead ArrangersArranger, the Issuing Bank L/C Issuer and the Banks Lenders to treat such Borrower Borrowers’ Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their respective securities for purposes of United States Federal and Securities Laws (including state securities laws laws) (provided, however, that to the extent such Borrower Borrowers’ Materials constitute Information, they shall be treated as set forth in §29Section 10.07); (y) all Borrower 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 Joint Lead Arrangers Arranger shall be entitled to treat any Borrower Borrowers’ Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to the Agent (and the Agent will in turn deliver to each of the Banks, the Issuing Bank and the Agents:):
(a) as soon as practicable, but, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of Ryderthe Borrower, (i) the consolidated balance sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such year, and the related consolidated statements statement of income and consolidated statement of cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards accounting principles, and shall not be subject to any “going concern” certified without qualification by PricewaterhouseCoopers LLP or like qualification or exception or any qualification or exception as by other independent certified public accountants reasonably satisfactory to the scope of such audit. In additionAgent, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement certification from such accountants to the effect that they have read a copy of this Agreement, Credit Agreement and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, or if such accountants shall have obtained such knowledge of any then existing Default or Event of Default they shall disclose in such 66 -58- statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default; and (ii) the unaudited consolidating balance sheets of the Borrower and its Subsidiaries prepared along management reporting lines as at the end of such year, and the related unaudited consolidating (except with respect to cash flow) statements of income for such Persons, each setting forth in comparative form the figures for the previous fiscal year and all such consolidating statements to be in reasonable detail, prepared by management in accordance with the past financial practice of the Borrower and its Subsidiaries and with a certification by the chief financial officer, treasurer or controller of the Borrower that such financial statements fairly present the financial condition of the Borrower and its Subsidiaries on the date thereof and the results of operations of the Borrower and its Subsidiaries for the period covered thereby;
(b) as soon as practicable, but in any event not later than sixty (60) days after the end of each of the first three fiscal quarters of in each fiscal year of Ryderthe Borrower, and not later than ninety (90) days after the end of the fourth fiscal quarter in each fiscal year of the Borrower, copies of the unaudited consolidated and consolidating balance sheets of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated and consolidating statements of income and consolidated statements of cash flows flow for the portion of the Borrower's fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles (to the extent GAAP is applicable to interim unaudited financial statements) except for provisions for footnotes and year-end adjustments), and in each case together with a certification by the principal chief financial officer officer, treasurer or controller of Ryder the Borrower that the consolidated such financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder the Borrower and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to the foregoing) and the results of operations of the Borrower and its Subsidiaries for the period then endedcovered thereby;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed statement certified by the principal chief financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as controller of the end Borrower in substantially the form of Exhibit I (the applicable period "Compliance Certificate") hereto and setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof covenants contained in Section 11 and (iiif applicable) such other matters as are set forth thereinreconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) as soon as practicable butpracticable, but in any event, event within thirty fifteen (3015) Business Days after the issuance end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base calculated as at the end of such calendar month;
(e) promptly and in any event within twenty (20) days of the filing or mailing thereof, copies of all material reports or filings of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder the Borrower;
(f) not later than thirty (30) days after the beginning of each fiscal year of the Borrower, the annual budget of the Borrower and its Subsidiaries;
(g) promptly upon receipt thereof, copies of all accountants' management letters received by the Borrower or any of its Subsidiaries;
(h) from time to time upon reasonable request by the Agent, but no more frequently than annually, projections of the Borrower and its Subsidiaries generallyupdating those projections referred to in Section 8.4.5 or any other projections delivered pursuant to this Section 9.4(h);
(i) not later than thirty (30) days prior to the beginning of each fiscal year of the Borrower, a proposed Environmental Budget for the forthcoming fiscal year, which shall be a forecast of (but not a restriction on) expenditures of the Borrower and its Subsidiaries in respect of environmental matters for such forthcoming fiscal year; provided that if any material expenditures occur (or are reasonably expected by the Borrower or its Subsidiaries to occur) during such forthcoming fiscal year that are not reflected in the Environmental Budget for such fiscal year, the Borrower shall notify the Agent and the Banks of the relevant facts and circumstances within thirty (30) days of obtaining knowledge thereof, and if requested in writing by the Majority Banks shall prepare and deliver to the Agent and each of the Banks an appropriately revised Environmental Budget; and
(ej) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationreasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Aviall Inc)
Financial Statements, Certificates and Information. Ryder will deliver to the Administrative Agent (for further distribution to each of the BanksLenders, the Issuing Bank each L/C Issuer and the Agents:each other Agent, as applicable):
(a) as soon as practicable, but, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of Ryder, (i) the consolidated balance sheet of Ryder and its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, detail and prepared in accordance with GAAP GAAP, and audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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. In addition, within one hundred twenty and (120ii) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such the accountants referred to in Section 6.04(a)(i) to the effect that they such accountants have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then then-existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that provided, that, such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of Ryder, copies of the consolidated balance sheets of Ryder and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial officer a Financial Officer of Ryder that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (aSection 6.04(a)(i) and (b) aboveSection 6.04(b), a certificate in the form of Exhibit C hereto J (the a “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer a Financial Officer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof Section 7.08 as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance compliance, and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof thereof, and (ii) such other matters as are set forth therein;
(d) as soon as practicable butpracticable, but in any event, event within thirty (30) Business Days after the issuance thereof, copies of all material materials of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks any Lender, any L/C Issuer or any Agent may reasonably request. The Borrowers hereby authorize each Bank Lender, each L/C Issuer and each Agent to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, including with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Lender, L/C Issuer or Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent Lender, such L/C Issuer or Bank or the Issuing Bank such Agent, as applicable, shall use reasonable efforts within Law to maintain the confidentiality of such Informationinformation. Documents required to be delivered pursuant to §§8.4(aSections 6.04(a), (b) and (c) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (ia) on which Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; , or (iib) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank Lender and the Agents have each Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided provided, that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank Lender that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank Lender; and (ii) Ryder shall notify the Administrative Agent and each Bank 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 Ryder shall be required to provide paper copies of the each Compliance Certificates required by §8.4(cto be delivered pursuant to Section 6.04(c) 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 Ryder with any such request for delivery, and each Bank Lender shall be 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 Joint Lead Arrangers will make available to the Banks Lenders, the L/C Issuers and the Issuing Bank Agents materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) ), and (b) certain of the Banks Lenders (each, a “Public BankLender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities securities: (wi) all Borrower Materials that are to be made available to Public Banks Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (xii) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank L/C Issuers and the Banks Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, howeverthat, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29Section 11.07); (yiii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (ziv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsAgent:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Trust, the audited consolidated balance sheet of Ryder the Trust and its Consolidated Subsidiaries as at the end of such year, and the related audited consolidated statements of income income, changes in shareholder’s equity and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants (and the Borrower also shall deliver the foregoing for FPLP on a report consolidated basis); together with (i) a certification by the principal financial or accounting officer of the Borrower and opinion the Trust that the information contained in such financial statements fairly presents the financial position of independent certified public accountants the Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-K of nationally recognized standing selected by Ryder, which report the Trust filed with the SEC for such period and opinion shall be prepared 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 delivered to the scope of such audit. In addition, within one hundred twenty Agent) and (120ii) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault under §10 or otherwise under the provisions of this Agreement relating to the financial condition of the Trust or any of its Subsidiaries, or of any facts or circumstances that would cause the Trust not to continue to qualify as a REIT for federal income tax purposes, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Default, Event of Default or such facts or circumstances, they shall disclose make disclosure thereof in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Defaultstatement;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three its March 31, June 30 and September 30 fiscal quarters of each fiscal year of Ryderquarters, copies of the unaudited consolidated balance sheets sheet of Ryder the Trust and its Consolidated Subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income income, changes in shareholders’ equity and cash flows for the portion of the Trust’s fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the extent GAAP is applicable to interim unaudited financial statements) Agent), together with a certification by the principal financial or accounting officer of Ryder the Borrower and the Trust that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) and fairly present position of the consolidated financial condition of Ryder Trust and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the Agent) (subject to year-end adjustments none of which shall be materially adverse and the results absence of operations footnotes) (and the Borrower also shall deliver the foregoing for the period then endedFPLP on a consolidated basis);
(c) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate Certificate of Compliance in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal chief financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as accounting officer of the end of the applicable period Borrower, and setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof and (ii) such other matters as are set forth thereincovenants contained in §10;
(df) promptly as soon as practicable butthey become available, a copy of each report submitted to the Borrower, the Trust or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in connection with any eventinterim audit thereof pertaining to any phase of the business of the Borrower, within thirty the Trust or any such Subsidiary;
(30g) Business Days after contemporaneously with (or promptly after) the issuance filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower or any Subsidiary Guarantor for borrowed money (other than the Loans), 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, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group;
(h) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders of Ryder the Trust;
(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, copies of the Form 10-K statement filed by the Trust 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 the Trust copies of the Form 10-Q statement filed by the Trust 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, the Trust shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not later than thirty (30) days prior to the end of each of their respective fiscal years, a business plan for the next fiscal year (including pro forma projections for such period);
(k) if requested by the Agent, a certification by the chief financial or accounting officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries generallyas of the end of any applicable fiscal year; and
(el) from time to time, and with reasonable promptness, time such other financial data and other information about the Borrower, the Trust, the Subsidiary Guarantors, their respective Subsidiaries, the Real Estate Assets (including the Eligible Borrowing Base Properties), the Pledged Interests and the Partially-Owned Entities as the Banks Agent or any Lender (through the Agent) may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any Without limitation of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is at the issuer request 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 Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect will deliver to the Borrowers or their respective securities for purposes of United States Federal and state securities laws Agent information relating to (provided, however, that to i) the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion determination of the Platform designated “Public Side Information;” existence or absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii) title to any Eligible Borrowing Base Property, and (ziii) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationinsurance coverage.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Secured Term Loan Agreement (First Potomac Realty Trust)
Financial Statements, Certificates and Information. Ryder ▇▇▇▇▇ will deliver to the Administrative Agent (for further distribution to each of the BanksLenders, the Issuing Bank each L/C Issuer and the Agents:each other Agent, as applicable):
(a) as soon as practicable, but, but in any event not later than one hundred twenty (120) days after the end of each fiscal year of Ryder, (i) the consolidated balance sheet of Ryder and its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, detail and prepared in accordance with GAAP GAAP, and audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder▇▇▇▇▇, which report and opinion shall be prepared 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. In addition, within one hundred twenty and (120ii) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such the accountants referred to in Section 6.04(a)(i) to the effect that they such accountants have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then then-existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that provided, that, such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of Ryder, copies of the consolidated balance sheets of Ryder and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial officer a Financial Officer of Ryder ▇▇▇▇▇ that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder ▇▇▇▇▇ and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (aSection 6.04(a)(i) and (b) aboveSection 6.04(b), a certificate in the form of Exhibit C hereto I (the a “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer a Financial Officer of Ryder▇▇▇▇▇, stating that Ryder ▇▇▇▇▇ and its Consolidated Subsidiaries are in compliance with §10 hereof Section 7.08 as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance compliance, and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof thereof, and (ii) such other matters as are set forth therein;
(d) as soon as practicable butpracticable, but in any event, event within thirty (30) Business Days after the issuance thereof, copies of all material materials of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks any Lender, any L/C Issuer or any Agent may reasonably request. The Borrowers hereby authorize each Bank Lender, each L/C Issuer and each Agent to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, including with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Lender, L/C Issuer or Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder ▇▇▇▇▇ so that Ryder ▇▇▇▇▇ may have the opportunity to contest such disclosure and such Agent Lender, such L/C Issuer or Bank or the Issuing Bank such Agent, as applicable, shall use reasonable efforts within Law to maintain the confidentiality of such Informationinformation. Documents required to be delivered pursuant to §§8.4(aSections 6.04(a), (b) and (c) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange CommissionSEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (ia) on which Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; , or (iib) on which such documents are posted on Ryder’s ▇▇▇▇▇’▇ behalf on an Internet or intranet website, if any, to which each Bank Lender and the Agents have each Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided provided, that: (i) Ryder ▇▇▇▇▇ shall deliver paper copies of such documents to the Administrative Agent or any Bank Lender that requests Ryder ▇▇▇▇▇ to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank Lender; and (ii) Ryder ▇▇▇▇▇ shall notify the Administrative Agent and each Bank 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 Ryder ▇▇▇▇▇ shall be required to provide paper copies of the each Compliance Certificates required by §8.4(cto be delivered pursuant to Section 6.04(c) 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 Ryder ▇▇▇▇▇ with any such request for delivery, and each Bank Lender shall be 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 Joint Lead Arrangers will make available to the Banks Lenders, the L/C Issuers and the Issuing Bank Agents materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) ), and (b) certain of the Banks Lenders (each, a “Public BankLender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities securities: (wi) all Borrower Materials that are to be made available to Public Banks Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (xii) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank L/C Issuers and the Banks Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, howeverthat, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29Section 11.07); (yiii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (ziv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Financial Statements, Certificates and Information. Ryder The Borrower and the Trust will deliver to the Agent (with copies to the Agent for each of the Banks, the Issuing Bank and the Agents:Lender):
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Trust, the audited consolidated balance sheet of Ryder the Trust and its Consolidated Subsidiaries as at the end of such year, and the related audited consolidated statements of income income, changes in shareholder’s equity (or the equivalent thereof) and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like GAAP, and, in each case, accompanied by an auditor's report prepared without qualification or exception or any qualification or exception as to by the scope of such audit. In additionAccountants; together with, within one hundred twenty (120) days of at the end of each such fiscal yearAgent’s request, Ryder shall provide the Banks with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault under §10 or otherwise under the provisions of this Agreement relating to the financial condition of the Trust or any of its Subsidiaries, or of any facts or circumstances that would cause the Trust not to continue to qualify as a REIT for federal income tax purposes, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Default, Event of Default or such facts or circumstances, they shall disclose make disclosure thereof in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Defaultstatement;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three its March 31, June 30 and September 30 fiscal quarters of each fiscal year of Ryderquarters, copies of the unaudited consolidated balance sheets sheet of Ryder the Trust and its Consolidated Subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income income, changes in shareholders’ equity and cash flows for the portion of the Trust’s fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period provided pursuant to the extent GAAP is applicable to interim unaudited financial statementsclause (i) below), together with a certification by the principal financial or accounting officer of Ryder the Borrower and the Trust that the consolidated information contained in such financial statements are fairly presents the financial position of the Trust and its Subsidiaries on the date thereof (subject to year-end adjustments none of which shall be materially adverse and the absence of footnotes);
(c) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, statements of Net Operating Income and outstanding Indebtedness as at the end of such fiscal year and for the fiscal year then ended in respect of each Real Estate Asset (including each Eligible Unencumbered Property), each prepared in accordance with GAAP consistent with the definitions of Net Operating Income and outstanding Indebtedness used in this Agreement and a rent roll and operating statement in respect of each Eligible Unencumbered Property, in each case certified by the chief financial or accounting officer of the Borrower as true and correct;
(to d) as soon as practicable, but in any event not later than forty-five (45) days after the extent GAAP is applicable to interim end of each of the fiscal quarters of the Borrower, (i) copies of the unaudited financial statements) statements of Net Operating Income and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis outstanding Indebtedness as at the close end of business on the date thereof such quarter and the results of operations for the period portion of the fiscal year then endedelapsed in respect of each Real Estate Asset (including each Eligible Unencumbered Property), each prepared in accordance with GAAP consistent with the definitions of Net Operating Income and outstanding Indebtedness used in this Agreement, and a rent roll and operating statement in respect of each Eligible Unencumbered Property, in each case certified by the chief financial or accounting officer of the Borrower to present fairly the Net Operating Income and outstanding Indebtedness and rent roll in respect of each such Real Estate Asset, (ii) an occupancy analysis in respect of each Real Estate Asset (including each Eligible Unencumbered Property) certified by the chief financial officer of the Borrower to be true and complete, and (iii) from ▇▇▇▇▇▇▇ III, a schedule of revenues and expenses for each Eligible Unencumbered Property;
(ce) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate statement in the form of Exhibit C C-1 hereto (the “Compliance Certificate”) signed by the principal chief financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as accounting officer of the end of the applicable period Borrower, and setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof and (ii) such other matters as are set forth thereincovenants contained in §10;
(df) promptly as soon as practicable butthey become available, a copy of each report submitted to the Borrower, the Trust or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in connection with any eventinterim audit thereof pertaining to any phase of the business of the Borrower, within thirty the Trust or any such Subsidiary;
(30g) Business Days after contemporaneously with (or promptly after) the issuance filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Trust or any of its Subsidiaries (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, operations, assets, condition (financial or otherwise) or properties of the Trust, ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III or any other member of the ▇▇▇▇▇▇▇ Group;
(h) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders equityholders of Ryder the Trust;
(i) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, copies of the Form 10-K statement filed by the Trust 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 the Trust copies of the Form 10-Q statement filed by the Trust with the SEC for such fiscal quarter;
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not later than thirty (30) days prior to the end of each of their respective fiscal years, a business plan for the next fiscal year (including pro forma projections for such period);
(k) together with the financial statements delivered pursuant to §8.4(a), a certification by the chief financial or any accounting officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries generally; andas of the end of the applicable fiscal year;
(el) in the event that the definition of “funds from operations” is revised by the Board of Governors of the National Association of Real Estate Investment Trusts, a report, certified by the chief financial or accounting officer of the Borrower, of the “funds from operations” of the Borrower based on the definition as in effect on the date of this Agreement and based on the definition as so revised from time to time, and which such report shall be delivered to the Agent (with reasonable promptnesscopies to the Agent for each Lender) with the financial statements required to be delivered pursuant to §8.4(a) or §8.4(b) above, as applicable; and
(m) from time to time such other financial data and other information about the Borrower, the Trust, their respective Subsidiaries, the Real Estate Assets and the Partially-Owned Entities as the Banks Agent or any Lender (through the Agent) may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (Hartman Commercial Properties Reit)
Financial Statements, Certificates and Information. Ryder The Company will deliver to the Agent, with sufficient copies for each of the Banks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Company, the consolidated balance sheet of Ryder the Company and its Consolidated Subsidiaries and the consolidating balance sheet of the Company and its Subsidiaries (other than the consolidating balance sheet of any Subsidiary of the Company which the Company's accountant does not in its reasonable discretion deem to be a material Subsidiary of the Company, unless such a Subsidiary is a Borrower), each as at the end of such year, and the related consolidated statements statement of income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial and consolidating statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards accounting principles, and shall not be subject to any “going concern” or like certified (without qualification or exception or any qualification or exception as otherwise reasonably acceptable to the scope Agent; provided that such certificate may set forth qualifications to the extent such qualifications pertain solely to changes in generally accepted accounting principles from those applied during earlier accounting periods, the implementation of which changes is reflected in the financial statements accompanying such audit. In additioncertification) by Price Waterhouse LLP or by other independent certified public accountants satisfactory to the Agent, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault pursuant to ss.10 hereof, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default pursuant to ss.10 hereof, they shall disclose in such statement any such Default or Event of DefaultDefault arising pursuant to ss.10 hereof; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Company, copies of the unaudited consolidated balance sheets sheet of Ryder the Company and its Consolidated Subsidiaries and the unaudited consolidating balance sheet of the Company and its Subsidiaries, each as at the end of such quarter, and the related consolidated statements 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 Company's fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) generally accepted accounting principles, together with a certification by the principal financial or accounting officer of Ryder the Company that the information contained in such financial statements fairly presents the financial position of the Company 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 Company, unaudited monthly consolidated financial statements are of the Company and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Company and its Subsidiaries for such month, each prepared in accordance with GAAP (to generally accepted accounting principles, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statements) and or accounting officer of the Company that the information contained in such financial statements fairly present presents the consolidated financial condition of Ryder the Company and its Consolidated Subsidiaries on a consolidated basis 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);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate statement certified by the principal financial or accounting officer of the Company in substantially the form of Exhibit C D hereto (the “"Compliance Certificate”") signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof covenants contained in ss.10 and (iiif applicable) such other matters as are set forth thereinreconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) as soon as practicable but, in any event, within thirty (30) Business Days after contemporaneously with the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder any of the Borrowers;
(f) within fifteen (15) days after the end of each calendar month or at such earlier 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 other date so requested by the Agent;
(g) within fifteen (15) days after the end of each calendar month, an Accounts Receivable aging report;
(h) by not later than thirty (30) days prior to the end of any fiscal year, the annual projections of the Borrowers for the next fiscal year, and upon the request of the Agent or any Bank, any quarterly projections of its Subsidiaries generallythe Borrower prepared by the Borrowers for the next fiscal quarter; and
(ei) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants, management letters) as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationreasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The Borrower and the Trust will deliver to each of the Banks, the Issuing Bank and the AgentsAgent:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Trust, the audited consolidated balance sheet of Ryder the Trust and its Consolidated Subsidiaries as at the end of such year, and the related audited consolidated statements of income income, changes in shareholder’s equity and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, preparedprepared in accordance with GAAP (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis); together with (i) a certification by the principal financial or accounting officer of the Borrower and the Trust that the information contained in such financial statements is complete and correct in all material respects and fairly presents, in accordance with GAAP audited consistently applied throughout the period to which it applies, the financial position of the Trust and accompanied its Subsidiaries on the date thereof (which may be provided by a report inclusion in the Form 10-K of the Trust filed with the SEC for such period and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 delivered to the scope of such audit. In addition, within one hundred twenty Agent) and (120ii) days of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault under §10 or otherwise under the provisions of this Agreement relating to the financial condition of the Trust or any of its Subsidiaries, or of any facts or circumstances that would cause the Trust not to continue to qualify as a REIT for federal income tax purposes, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Default, Event of Default or such facts or circumstances, they shall disclose make disclosure thereof in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Defaultstatement;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three its March 31, June 30 and September 30 fiscal quarters of each fiscal year of Ryderquarters, copies of the unaudited consolidated balance sheets sheet of Ryder the Trust and its Consolidated Subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income income, changes in shareholders’ equity and cash flows for the portion of the Trust’s fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the extent GAAP is applicable to interim unaudited financial statements) Agent), together with a certification by the principal financial or accounting officer of Ryder the Borrower and the Trust that the consolidated information contained in such financial statements are prepared is complete and correct in all material respects and fairly presents, in accordance with GAAP (consistently applied throughout the period to which it applies, the extent GAAP is applicable to interim unaudited financial statements) and fairly present position of the consolidated financial condition of Ryder Trust and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the Agent) (subject to normal year-end adjustments none of which shall be materially adverse and the results absence of operations footnotes) (and the Borrower also shall deliver the foregoing for the period then endedFPLP on a consolidated basis);
(c) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate Certificate of Compliance in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal chief financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as accounting officer of the end of the applicable period Borrower, and setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying with the nature thereof and (ii) such other matters as are set forth thereincovenants contained in §10;
(df) promptly as soon as practicable butthey become available, a copy of each report submitted to the Borrower, the Trust or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in connection with any eventinterim audit thereof pertaining to any phase of the business of the Borrower, within thirty the Trust or any such Subsidiary;
(30g) Business Days after contemporaneously with (or promptly after) the issuance filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower or any Subsidiary Guarantor for borrowed money (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, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac GroupMaterial Adverse Effect;
(h) contemporaneously with (or promptly after) the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission SEC or sent to the stockholders of Ryder the Trust;
(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, copies of the Form 10-K statement filed by the Trust 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 the Trust copies of the Form 10-Q statement filed by the Trust 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, the Trust shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not later than thirty (30) days prior toafter the end of each of their respective fiscal years, a business plan for the next fiscal year (including pro forma projections for such period);
(k) if requested by the Agent, a certification by the chief financial or accounting officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries generallyas of the end of any applicable fiscal year; and
(el) from time to time, and with reasonable promptness, time such other financial data and other information about the Borrower, the Trust, the Subsidiary Guarantor, the Unsecured Revolver Subsidiary Guarantors, and their respective Subsidiaries, the Real Estate Assets (including the Eligible Borrowing Base Properties), the Pledged Interests and the Partially-Owned Entities as the Banks Agent or any Lender (through the Agent) may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any Without limitation of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is at the issuer request 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 Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect will deliver to the Borrowers or their respective securities for purposes of United States Federal and state securities laws Agent information relating to (provided, however, that to i) the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion determination of the Platform designated “Public Side Information;” existence or absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii) title to any Eligible Borrowing Base Property, (iii) the Property Level Loan Documents and Property Level Debt, and (ziv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationinsurance coverage.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Secured Term Loan Agreement (First Potomac Realty Trust)
Financial Statements, Certificates and Information. Ryder The Borrowers will deliver to each of the Banks, Administrative Agent (for posting to the Issuing Bank and Lenders) the Agentsfollowing:
(a) as soon as practicable, but, in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Parent, the consolidated balance sheet sheets of Ryder the Parent and its Consolidated Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedoperations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied certified by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryderthe Accountants, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like 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 audit. In addition, within one hundred twenty qualification or exception as to scope is based upon or results from any limitations imposed by the Borrowers or any action (120or inaction) days of the end of each such fiscal year, Ryder shall provide the Banks Borrowers with a written statement from such accountants respect to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;applicable audit.
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Parent, copies of the consolidated balance sheets and statement of Ryder operations of the Parent and its Consolidated Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of Ryder the Borrowers (the “CFO” or “CAO”) that the such consolidated financial statements are were prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present in all material respects the consolidated financial condition of Ryder the Borrowers and its Consolidated their Subsidiaries on a consolidated basis 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 and the absence of footnotes;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed Certificate certified by the principal financial officer, treasurer CFO or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof CAO as of the end of the applicable period period, setting forth in reasonable detail the computations evidencing required thereby, provided that, if the Borrowers shall at the time of issuance of such compliance and certifying (i) no certificate or at any other time obtain knowledge of any Default or Event of Default exists Default, the Borrowers will include in such Compliance Certificate or if otherwise deliver promptly to the Lenders a Default or Event of Default shall then exist, certificate specifying the nature and period of existence thereof and (ii) such other matters as are set forth thereinwhat action the Borrowers propose to take with respect thereto;
(d) [RESERVED]
(e) as soon as practicable butpracticable, but in any event, within thirty (30) Business Days event not later than 30 days after the issuance thereofcommencement of each fiscal year of the Parent, copies a copy of all material of a financial nature filed with the Securities annual budget, projections and Exchange Commission or sent to business plan for the stockholders of Ryder or any of Parent and its Subsidiaries generallyfor such fiscal year; and
(ef) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants’ management letters, audit reports or recommendations regarding internal controls provided by the Accountants to the board of directors of the Parent, or any committee thereof) as the Banks Lenders may reasonably request. The Borrowers hereby authorize each Bank the Lenders to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities Governmental Authorities where required by Applicable Law; provided, includinghowever, without limitation, with respect to requests or directives, whether or not having that the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank Lenders shall, to the extent practicable and legally permissibleallowable under Applicable Law, provide prompt written notice notify the Borrowers within a reasonable period prior to Ryder so that Ryder the time any such disclosure is made; and provided further, this authorization shall not be 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 opportunity federal Right to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law Financial Privacy Act of 1978, as in effect from time to maintain the confidentiality of such Informationtime. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) this Section (to the extent any such documents are included in materials otherwise filed with the Securities SEC and Exchange Commissionavailable in ▇▇▇▇▇) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Ryder posts the Borrowers post such documents, or provides provide a link thereto on its the Borrowers’ website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇the website address listed on Schedule 10.02; or (ii) on which such documents are posted on Ryder’s the Borrowers’ behalf on an Internet or intranet website, if any, to which each Bank Lender and the Agents Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such report is filed electronically with the SEC’s ▇▇▇▇▇ system; provided that: (i) Ryder the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Bank Lender that requests Ryder the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 documentsLender. Notwithstanding anything contained herein, unless the Administrative Agent otherwise agrees, in every instance Ryder the Borrowers shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder the Borrowers with any such request for delivery, and each Bank Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Each Borrower The Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will may, but shall not be obligated to, make available to the Banks Lenders and the Issuing Bank L/C Issuer materials and/or information provided by or on behalf of such Borrower the Borrowers hereunder (collectively, the “Borrower Borrowers’ Materials”) by posting the Borrower Borrowers’ Materials on IntraLinks IntraLinks, Syndtrak, ClearPar, or another a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Banks Lenders (each, a “Public BankLender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, foregoing and who may be engaged in investment and other market-related activities with respect to such Persons’ Person’s securities. Each Borrower The Borrowers hereby agrees agree that, if reasonably requested by the Administrative Agent, the Borrowers will use commercially reasonable efforts to identify that so long as such Borrower is portion of the issuer of any outstanding debt or equity securities Borrowers’ Materials that are registered or issued pursuant may be distributed to a private offering or is actively contemplating issuing any such securities Public Lenders and that (w) all Borrower Borrowers’ Materials that are to be made available to Public Banks 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 Borrowers’ Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank L/C Issuer and the Banks Lenders to treat such Borrower Borrowers’ Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their respective securities for purposes of United States Federal and Securities Laws (including state securities laws laws) (provided, however, that to the extent such Borrower Borrowers’ Materials constitute Information, they shall be treated as set forth in §29Section 10.07); (y) all Borrower 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 Joint Lead Arrangers shall be entitled to treat any Borrower Borrowers’ Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The Company will deliver to each of the Banks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, in any event not later than one hundred twenty (120) 100 days after the end of each fiscal year of Ryderthe Company, the consolidated balance sheet of Ryder the Company and its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income cash flows, and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedrelated consolidated statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited and accompanied and, with respect to the consolidated financial statements, certified by a report and opinion of independent certified public accountants of Ernst & Young LLP or by other nationally recognized standing independent auditors selected by Ryder, which report the Company and opinion shall be prepared 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 reasonably satisfactory to the scope of such auditAdministrative Agent (the “Accountants”). In addition, within one hundred twenty (120) days of simultaneously therewith, the end of each such fiscal year, Ryder Company shall provide the Banks with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60) 60 days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Company, copies of the consolidated balance sheets sheet and statement of Ryder operations of the Company and its Consolidated Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of Ryder the Company (the “CFO” or the “CAO”) that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present present, in all material respects, the consolidated financial condition of Ryder the Company and its Consolidated Subsidiaries on a consolidated basis 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 and the exclusion of detailed footnotes;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer CFO or assistant treasurer of Ryderthe CAO or the Company’s corporate treasurer, stating that Ryder the Borrowers and its Consolidated their Subsidiaries are in compliance with the covenants contained in §10 §7, 8 and 9 hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance with respect to the covenants contained in §9 hereof and certifying (i) that no Default or Event of Default exists exists, provided that if any Borrower shall at the time of issuance of such Compliance Certificate or if a at any other time obtain knowledge of any Default or Event of Default Default, the Company shall then exist, include in such certificate or otherwise deliver forthwith to the Banks a certificate specifying the nature and period of existence thereof and (ii) such other matters as are set forth thereinwhat action the Borrowers propose to take with respect thereto;
(d) as soon as practicable but, in any event, within thirty (30) Business Days after promptly following the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the Company’s and its Subsidiaries’ stockholders of Ryder generally;
(e) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Bank for purposes of its Subsidiaries generallycompliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the USA PATRIOT Act, the Canadian AML Acts and the Beneficial Ownership Regulation; and
(ef) from time to time, and with reasonable promptness, time such other financial data and other information as any of the Banks may reasonably requestrequest through the Administrative Agent. The Borrowers In addition, the Company shall, promptly upon the issuance thereof, notify the Administrative Agent of any announcement by ▇▇▇▇▇’▇ or S&P (i) of any change in any Senior Public Debt Rating or (ii) that any Senior Public Debt Rating will be put on a “negative outlook” or “negative credit watch.” Each Borrower hereby authorize authorizes each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that this authorization shall not be deemed to be a waiver of any rights to object to the extent disclosure by the Banks of any such information which such Borrower Materials constitute Informationhas or may have under the federal Right to Financial Privacy Act of 1978, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are effect from time to time, except as to matters specifically permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationtherein.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty eighty (12080) days after the end of each fiscal year of Ryderthe Parent, the audited consolidated balance sheet of Ryder the Parent and its Consolidated Subsidiaries subsidiaries, as at the end of such year, and the related audited consolidated statements of income and audited consolidated statements of cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedflow, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements (i) to be in reasonable detail, prepared, prepared in accordance with GAAP audited and accompanied the requirements of the Securities and Exchange Commission (the “SEC”) and (ii) to be certified without qualification and without an expression of uncertainty as to the ability of the Parent, the Borrower or any of the Subsidiaries to continue as going concerns, by a report and opinion of Ernst & Young LLP or by other independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 reasonably satisfactory to the scope of such audit. In additionAdministrative Agent, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of DefaultDefault related to or arising from accounting matters, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default;
(bi) as soon as practicable, but in any event not later than sixty fifty (6050) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Parent, copies of the unaudited consolidated balance sheets of Ryder the Parent and its Consolidated Subsidiaries subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the portion of the fiscal year quarter then ended, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and SEC requirements, together with a certification by the principal financial or accounting officer of Ryder the Borrower that the consolidated information contained in such financial statements are fairly presents the financial position of the Parent, the Borrower and their respective subsidiaries on the date thereof (subject to year-end adjustments);
(ii) during the Suspension Period, as soon as practicable, but in any event not later than thirty (30) days after the end of each month, copies of the unaudited consolidated balance sheets of the Parent and its subsidiaries as at the end of such month, and the related consolidated statements of income for the fiscal month then ended, all in reasonable detail and prepared in accordance with GAAP (to GAAP, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statements) or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Parent, the Borrower and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business their respective subsidiaries on the date thereof (subject to year-end and the results of operations for the period then endedquarter-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (bb)(i) above, (i) a certificate statement certified by the principal financial or accounting officer of the Borrower in substantially the form of Exhibit C E hereto or any other form acceptable to the Administrative Agent (the a “Compliance Certificate”) signed by and certifying that no Default or Event of Default is then continuing or describing the principal financial officer, treasurer nature and duration of any then continuing Default or assistant treasurer Event of Ryder, stating that Ryder Default and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance with the covenants contained in §11 and certifying (iif applicable) no Default or Event of Default exists or if a Default or Event of Default shall then existreconciliations to reflect changes in GAAP since the Balance Sheet Date, specifying the nature thereof and (ii) a schedule in form and detail reasonably satisfactory to the Administrative Agent of computations of (x) Consolidated Net Income (along with a schedule that reconciles the net income (or loss) of the Parent and its subsidiaries on a consolidated basis to the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis) and (y) Consolidated EBITDA and other financial covenant-related calculations detailing the adjustments made to exclude Excluded Subsidiaries from such other matters computations, in each case, prepared by the principal financial or accounting officer of the Borrower, (iii) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent of the amount of cash and cash equivalents as are set forth thereinof the end of such fiscal quarter in each of the Parent’s, the Borrower’s and each of the Subsidiary’s deposit accounts and securities accounts, (iv) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent tracking and detailing the existing Investments made pursuant to the terms of §10.3(j) and the replenishment in accordance with the terms of the definition of Investment and (v) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent tracking and detailing the Distributions of the Borrower made to the Parent and the reasons therefor;
(d) as soon as practicable but, promptly upon completion thereof and in any event, within thirty event no later than eighty (3080) Business Days days after the issuance thereofbeginning of each fiscal year of the Borrower, copies the Borrower’s annual operating budget in the form of all material consolidated financial projections for such fiscal year and prepared on a quarterly basis and setting forth projected operating results for each quarter in such fiscal year and for the fiscal year as a whole, including projections of operating cash flow together with a financial nature filed with quarterly itemization of estimated taxes and Capital Expenditures for such fiscal year, which are prepared on the Securities and Exchange Commission or sent to the stockholders basis of Ryder or any of its Subsidiaries generallyreasonable assumptions; and
(e) from time to time, and with reasonable promptness, time such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, (including, without limitation, accountants’ management letters) with respect to requests the condition or directivesoperations, whether financial or not having otherwise, of the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request thereforParent, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank Borrower and the Agents have access subsidiaries (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (iincluding Excluded Subsidiaries) Ryder shall deliver paper copies of such documents to as the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) Lender may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationreasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Financial Statements, Certificates and Information. Ryder The Borrowers will deliver to each of the Banks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, in any event not later than one hundred twenty (120) 90 days after the end of each fiscal year of Ryderthe Borrowers, the consolidated balance sheet of Ryder and its Consolidated Subsidiaries the Borrowers as at the end of such year, statements of cash flows, and the related consolidated statements statement of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedoperations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards Generally Accepted Accounting Principles, and shall not be subject to any “going concern” certified without qualification by Price Waterhouse LLP or like qualification or exception or any qualification or exception as to the scope of such audit. In additionby other independent nationally recognized certified public accountants, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided provided, that such accountants shall not be liable to the Banks Bank for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60) 45 days after the end of each of the first three fiscal quarters quarter of each fiscal year of Ryderthe Borrowers, copies of the unaudited consolidated and consolidating balance sheets sheet and statement of Ryder and its Consolidated Subsidiaries operations of the Borrowers as at the end of such quarter, subject to year end audit adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) Generally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of Ryder the Borrowers that the consolidated such financial statements are have been prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) Generally Accepted Accounting Principles and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis the Borrowers as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed statement certified by the principal financial officer, treasurer or assistant treasurer accounting officer of Ryder, stating the Borrowers that Ryder and its Consolidated Subsidiaries the Borrowers are in compliance with §10 the covenants contained in Sections 5 and 6 hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth thereincompliance;
(d) as soon as practicable but, in any eventwhen requested by the Bank, within thirty (30) Business Days 20 days after the issuance end of each calendar month, copies of the unaudited consolidated balance sheet and income statements of the Borrowers as at the end of such calendar month, and statement of cash flows;
(e) within 20 days after the end of each calendar month, an accounts receivable aging summary and a statement certified by the principal financial or accounting officer of the Borrowers that the Borrowers are in compliance with Section 6.7 as of the end of such month and setting forth in reasonable detail computations evidencing such compliance;
(f) no later than July 31st of each fiscal year of the Borrowers, the annual budgets of the Borrowers for the current fiscal year (including the projected consolidated and consolidating balance sheets for the end of such fiscal year);
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generallythe Borrowers; and
(eh) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants' management letters) as the Banks Bank may reasonably request. The Borrowers hereby authorize each the Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Lawlaw; provided, includinghowever, without limitation, with respect to requests or directives, whether or not having that the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissibleallowable under law, provide prompt written notice to Ryder so that Ryder may have notify the opportunity to contest Borrowers at the time any such disclosure is made; and such Agent or Bank or the Issuing Bank provided further, this authorization shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 not be deemed to have been delivered on be a waiver of any rights to object to the date (i) on which Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored disclosure by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery information which any Borrower has or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish under the federal Right to receive material non-public information with respect Financial Privacy Act of 1978 or other applicable laws, as in effect from time to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationtime.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (TRC Companies Inc /De/)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrower, the consolidated audited balance sheet sheets of Ryder the Borrower and its Consolidated Subsidiaries as of the Company at the end of such year, and the consolidated related audited statements of income operations and statements of cash flows and Funds From Operations and taxable income for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards Generally Accepted Accounting Principles on a consolidated basis including the Borrower and the Related Companies, and accompanied by an auditor’s report prepared by Ernst & Young LLP or by another independent certified public accountant reasonably acceptable to the Agent 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. In addition; provided, within one hundred twenty (120) days however, that for so long as the Borrower and the Company are filing Form 10-K with the SEC, the delivery of the end of each such fiscal year, Ryder shall provide the Banks with a written statement from such accountants to the effect that they have read a copy thereof pursuant to paragraph (e) of this Agreement, and that, in making the examination necessary §7.4 shall be deemed to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Defaultsatisfy this paragraph (a);
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Ryderthe Borrower, copies of the consolidated unaudited balance sheets of Ryder the Borrower and its Consolidated Subsidiaries of the Company as at the end of such quarter, and the related consolidated unaudited statements of operations and statements of Funds From Operations and estimated taxable income and cash flows for the portion of the Borrower’s fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (to Generally Accepted Accounting Principles on a consolidated basis including the extent GAAP is applicable to interim unaudited financial statements) Borrower and the Related Companies, together with a certification by the principal financial or accounting officer of Ryder the Company that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) position of the Borrower and fairly present of the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business Company on the date thereof (subject to year-end adjustments); provided, however, that for so long as the Borrower and the results Company are filing Form 10-Q with the SEC, the delivery of operations for the period then endeda copy thereof pursuant to paragraph (e) of this §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, (i) copies of a statement of the aggregate Net Operating Income for such fiscal quarter for the Unencumbered Properties and a listing of such properties, prepared on a basis consistent with the statements furnished pursuant to §6.4(c), and certified by the Company pursuant to a certificate signed on the Company’s behalf by a Responsible Officer of the Company and, (ii) 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 certificate Compliance Certificate in the form of Exhibit C hereto (signed on the “Compliance Certificate”) signed Company’s behalf by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as a Responsible Officer of the end of the applicable period Company and setting forth in reasonable detail computations evidencing such compliance with the covenants contained herein (including §8.6 and certifying (i§§9.1 through 9.7) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (iiif applicable) such other matters as are set forth thereinreconciliations to reflect changes in Generally Accepted Accounting Principles since the Balance Sheet Date, and including an updated Schedule 6.19, if required under §6.19;
(de) as soon as practicable butpracticable, but in any event, within thirty event not later than ninety (3090) Business Days days after the issuance thereofend of each fiscal year of the Company, copies of all material of a financial nature 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 after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Ryder 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 Agent pursuant hereto;
(g) promptly, and in any event within five Business Days after receipt thereof by any Related Company or any Subsidiary thereof, copies of its Subsidiaries generallyeach notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Related Company or any Subsidiary thereof; and
(eh) from time to time, and with reasonable promptness, time such other financial data and other information as the Banks Agent may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, request including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (by telecopier or electronic mail) of the posting financial statements 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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side InformationUnconsolidated Entities.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Credit Agreement (Liberty Property Limited Partnership)
Financial Statements, Certificates and Information. Ryder The Company will deliver to each of the Banks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, in any event not later than one hundred twenty (120) 100 days after the end of each fiscal year of Ryderthe Company, the consolidated balance sheet of Ryder the Company and its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income cash flows, and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedrelated consolidated statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited and accompanied and, with respect to the consolidated financial statements, certified by a report and opinion of independent certified public accountants of Ernst & Young LLP or by other nationally recognized standing independent auditors selected by Ryder, which report the Company and opinion shall be prepared 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 reasonably satisfactory to the scope of such auditAdministrative Agent (the “Accountants”). In addition, within one hundred twenty (120) days of simultaneously therewith, the end of each such fiscal year, Ryder Company shall provide the Banks with a written statement from such accountants Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants Accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty (60) 60 days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Company, copies of the consolidated balance sheets sheet and statement of Ryder operations of the Company and its Consolidated Subsidiaries as at the end of such quarter, subject to year-end adjustments, and the related consolidated statements statement of income and cash flows for the portion of the fiscal year then endedflows, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of Ryder the Company (the “CFO” or the “CAO”) that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present present, in all material respects, the consolidated financial condition of Ryder the Company and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred , subject to in (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the year-end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein;
(d) as soon as practicable but, in any event, within thirty (30) Business Days after the issuance thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank adjustments and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies exclusion of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Informationdetailed footnotes;” and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The REIT and Borrowers will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty (120) 90 days after the end of each fiscal year of Ryderthe REIT, the audited consolidated balance sheet sheets of Ryder the REIT and its Consolidated Subsidiaries as at the end of such year, and the related audited consolidated statements of income and cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards 55 accounting principles, and shall not be subject accompanied by an auditor's report prepared without qualification by KPMG LLP or by another "Big Five" accounting firm and any other reasonable information the Lenders may need to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit. In addition, within one hundred twenty (120) days complete a financial analysis of the end of each such fiscal yearBorrowers, Ryder shall provide the Banks together with (i) a written statement from such accountants to the effect that they have read a copy caused this Agreement to be reviewed and that in the course of this Agreement, their audit of the REIT and that, in making the examination necessary its Subsidiaries no facts have come to said certification, they have obtained no knowledge of their attention that cause them to believe that any Default or Event of Default, under Section 9 exists or, if such is not the case, specifying such Default and the nature thereof (such statement to be furnished by such accountants shall have obtained with the understanding that the examination of such accountants cannot be relied upon to give such accountants knowledge of any then existing such Default except as it relates to accounting or Event auditing matters within the scope of Default they shall disclose their audit), and (ii) the unaudited consolidating balance sheets of the REIT and its Subsidiaries at the end of such year and the related unaudited consolidating statements of income for such year, each setting forth in comparative form the figures for the previous fiscal year, all such statements to be in reasonable detail and accompanied by a certification by the principal financial or accounting officer of the REIT that the information contained in such statement any such Default or Event consolidating financial statements fairly presents the financial position of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of DefaultREIT and its Subsidiaries on the date thereof;
(b) as soon as practicable, but in any event not later than sixty (60) 45 days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe REIT, copies of the unaudited consolidated and consolidating balance sheets of Ryder the Borrowers and its Consolidated their Subsidiaries as at the end of such quarter, and the related unaudited consolidated and consolidating statements of income and the related unaudited consolidated cash flows for the portion of the REIT's fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles (to the extent GAAP is applicable to interim unaudited financial statements) except for provisions for footnotes), together with a certification by the principal financial or accounting officer of Ryder the REIT that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) and fairly present position of the consolidated financial condition of Ryder REIT and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the REIT (including the fourth fiscal quarter in each year), copies of a report, prepared on a basis consistent with the statement furnished pursuant to Section 6.4(g) as to the Net Operating Income, capital expenditures and occupancy status for each parcel of Real Estate owned by the Borrowers and their respective Subsidiaries (excluding Development Assets and Land Assets) together with a certification by each Borrower's chief financial or chief accounting officer that the information contained in such report fairly presents in all material respects the results of operations of said parcels of Real Estate for the such period then ended(subject to year-end adjustments);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate statement (a "Compliance Certificate") certified by the principal financial or accounting officer of the REIT and the principal financial or accounting officer of each Borrower in the form of Exhibit C EXHIBIT D hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail a computation of the Borrowing Base Availability as of the date of such financial statements and computations evidencing such compliance with the covenants contained in Section 7.18 and certifying (i) no Default or Event Section 9 and with the requirements of Default exists or if a Default or Event Article XIII of Default shall then existthe Articles of Amendment and Restatement of the REIT dated July 6, specifying the nature thereof 1999, as from 56 time to time amended, and (iiif applicable) such other matters as are set forth thereinreconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) as soon as practicable but, in any event, within thirty (30) Business Days after contemporaneously with the issuance filing or mailing thereof, copies of all Reports on Form 8-K, 10-K or 10-Q, all registration statements and all other material of a financial nature filed with the Securities and Exchange Commission or sent to SEC by the stockholders of Ryder REIT or any of its Subsidiaries generally; andSubsidiaries;
(ef) when requested by the Administrative Agent, copies of all annual federal income tax returns and amendments thereto of the REIT and the Borrowers;
(g) when requested by the Administrative Agent, copies of other periodic income statements prepared by each Borrower for each item of Borrowing Base Property and for each other parcel of Real Estate included in the determination of Combined Total Asset Value;
(h) when requested by the Administrative Agent, a certificate of the REIT evidencing that the REIT is a real estate investment trust within the meaning of section 856 of the Code;
(i) not later than February 28 of each year, the Borrowers will provide to the Administrative Agent and the Lenders an annual business plan, setting forth their projected business prospects for the upcoming year and setting forth the financial projections of the Borrowers, including projected income statements and year-end balance sheet, for the upcoming year;
(j) not later than ten days following the occurrence thereof, written notification of each event permitted under Section 8.4 which has a value equal to or greater than $15,000,000 describing such event in reasonable detail;
(k) from time to timetime promptly following the request of the Administrative Agent, such evidence as the Administrative Agent may request with respect to the continued compliance of the Borrowing Base Properties with the requirements of Eligible Real Estate (except that such evidence shall not be requested more than once in any fiscal year of the Borrowers unless an Event of Default shall have occurred and be continuing);
(l) from time to time promptly following the reasonable request of the Administrative Agent, calculations of the Borrowing Base Availability at the time in effect (in the form provided in the Compliance Certificate);
(m) contemporaneously with reasonable promptnesstheir delivery to the holders of the MTN Notes, copies of all financial information and other reports provided by ▇▇▇▇▇▇▇ OP or any other Obligor to such holders (unless otherwise already delivered to the Lenders);
(n) contemporaneously with their delivery to the holders of the REIT Subordinated Notes, copies of all financial information and other reports provided by this REIT or any other Obligor to such holders (unless otherwise already delivered to the Lenders); and 57
(o) from time to time such other financial data and other information in the possession of the REIT or any Borrower (including without limitation auditors' management letters, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Banks REIT, any Borrower or any Subsidiary) as the Administrative Agent may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving and Term Credit Agreement (Heritage Property Investment Trust Inc)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrower, (i) the consolidated balance sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such year, and the related consolidated statements statement of income and consolidated statement of cash flows flow for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards GAAP, and shall not be subject to any “going concern” or like certified, without qualification or exception or any qualification or exception as to the scope of such audit. In addition, within one hundred twenty (120) days the audit and without an expression of uncertainty as to the ability of the end Borrower or any of each such fiscal yearits Subsidiaries to continue as going concerns, Ryder shall provide by Deloitte & Touche LLP or by another nationally recognized independent certified public accounting firm that is currently known as a "Big Four" accounting firm or another independent certified public accounting firm reasonably satisfactory to the Banks Administrative Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any then existing Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of DefaultDefault and (ii) accountants' management letters, if any, furnished to the Borrower or its board of directors by such accountants in connection with such financial statements;
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each fiscal year of Ryderthe Borrower, copies of the unaudited consolidated balance sheets sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of income and consolidated statement of cash flows flow for such quarter, and unaudited quarterly financial statements on a Store-by-Store basis for each Store operated by the Borrower and its Subsidiaries during such fiscal quarter, each setting forth in comparative form the figures for the portion corresponding fiscal quarter of the prior fiscal year then endedand the budget for such fiscal quarter, all in reasonable detail and, in all cases other than the Store-by-Store financial statements, (which shall be prepared consistent with past practices and otherwise reasonably acceptable to the Administrative Agent), prepared in accordance with GAAP (to except for the extent GAAP is applicable to interim unaudited financial statements) absence of footnote disclosure), together with a certification by the principal financial or accounting officer of Ryder the Borrower that the information contained in such financial statements fairly presents, in all material respects, the consolidated financial position of the Borrower and its Subsidiaries, or the financial position of the relevant Stores, as the case may be, on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event within thirty (35) days after the end of each fiscal month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements are of the Borrower and its Subsidiaries for such month and unaudited monthly financial statements on a Store-by-Store basis for each Store operated by the Borrower and its Subsidiaries during such month, each setting forth in comparative form the figures for the corresponding fiscal month of the prior fiscal year and the budget for such fiscal month, all in reasonable detail and, in all cases other than the Store-by-Store financial statements, (which shall be prepared consistent with past practices and otherwise reasonably acceptable to the Administrative Agent), prepared in accordance with GAAP (to except for the extent GAAP is applicable to interim unaudited absence of footnote disclosures), together with a certification by the principal financial statements) and or accounting officer of the Borrower that the information contained in such financial statements fairly present presents, in all material respects, the consolidated financial condition of Ryder the Borrower and its Consolidated Subsidiaries on a consolidated basis Subsidiaries, or the financial position of the relevant Stores, as at the close of business case may be, on the date thereof and the results of operations for the period then ended(subject to year-end adjustments);
(ci) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate statement certified by the principal financial or accounting officer of the Borrower on the Borrower's behalf, in substantially the form of Exhibit C D hereto (the “a "Compliance Certificate”") signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance with the covenants contained in Section 11 and certifying (iif applicable) no Default or Event of Default exists or if a Default or Event of Default shall then existreconciliations to reflect changes in GAAP since the Interim Balance Sheet Date, specifying the nature thereof and (ii) simultaneously with the delivery of the financial statements referred to in subsection (a) above only, a summary of Restaurant Cash Flow for the fiscal year then ended for the twenty (20) most recently opened Stores that have been open for the entirety of such other matters as are set forth thereinfiscal year, such summary to be in form reasonably satisfactory to the Administrative Agent;
(de) as soon as practicable butsimultaneously with the delivery of the financial statements referred to in subsection (b) for any fiscal quarter, in and at any eventtime promptly following the request of the Administrative Agent, within thirty a list of all new Stores for which leases have been executed during such quarter and all Stores listed on a prior report but not yet opened, copies of leases executed for new Stores during such quarter, anticipated Capital Expenditures for the build out of each such new Store, the amount of such Capital Expenditures not yet paid for each such new Store and the projected opening date for each such new Store;
(30f) Business Days after promptly following the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder or any the Borrower;
(g) from time to time promptly following request of the Administrative Agent, projections of the Borrower and its Subsidiaries generallyupdating those projections delivered to the Lenders and referred to in Section 8.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 9.4(g);
(h) within thirty (30) days before the beginning of each fiscal year of the Borrower, the budget of the Borrower and its Subsidiaries for such fiscal year setting forth the budget on a quarterly basis; and
(ei) from time to time, and with reasonable promptness, time promptly following the request of the Administrative Agent or any Lender such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇requested.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Buca Inc /Mn)
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrower, the consolidated balance sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such year, and the related consolidated statements statement of income and consolidated statement of cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited GAAP, and accompanied certified, without qualification and without an expression of uncertainty as to the ability of the Borrower or any of its Subsidiaries to continue as going concerns, by a report and opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or by other independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 satisfactory to the scope of such audit. In additionAdministrative Agent, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided PROVIDED that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to deliver the foregoing financial information by delivering copies of the Borrower's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto; PROVIDED, that (x) the Borrower is required to file such annual report on Form 10-K with the SEC, (y) such filing is actually made and (z) such annual report and financial statements are delivered within ninety (90) days after the end of each fiscal year of the Borrower and are otherwise in compliance with this Section 8.4(a);
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each in any fiscal year of Ryderthe Borrower, copies of the unaudited consolidated balance sheets sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements statement of income and consolidated statement of cash flows for the portion of the Borrower's fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) GAAP, together with a certification by the principal financial or accounting officer of Ryder the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments). Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to deliver the foregoing financial information by delivering copies of the Borrower's quarterly report on Form 10-Q in respect of such fiscal year, together with the financial statements required to be attached thereto; PROVIDED, that (x) the Borrower is required to file such quarterly report on Form 10-Q with the SEC, (y) such filing is actually made and (z) such quarterly report and financial statements are delivered within forty-five (45) days after the end of each of the first three fiscal quarters in any fiscal year of the Borrower and are otherwise in compliance with this Section 8.4(b);
(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 are of the Borrower and its Subsidiaries for such month setting forth in comparative form the figures from the actual historical figures for the previous year and a comparison setting forth the corresponding figures from the projected figures set forth in the projections described in Section 8.4(g) for such period, prepared in accordance with GAAP (to GAAP, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statements) and or accounting officer of the Borrower that the information contained in such financial statements fairly present presents the consolidated financial condition of Ryder the Borrower and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to quarter-end and the results of operations for the period then endedyear-end adjustments);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein;
(de) as soon as practicable but, in any event, within thirty (30) Business Days after contemporaneously with the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder the Borrower generally;
(f) projections of the Borrower and its Subsidiaries updating those projections delivered to the Lenders and referred to in Section 7.4.3 and if applicable, updating any later such projections delivered in response to a request pursuant to this Section 8.4(f);
(g) a twelve-month forecast, including the consolidated balance sheet of the Borrower and its Subsidiaries and related consolidated statements of income and cash flow, to be delivered to the Lenders prior to January 15 of each fiscal year of the Borrower;
(h) not less than once during any twelve-month period, account numbers and location of all material bank accounts of the Borrower or any of its Restricted Subsidiaries generally(as reasonably determined by the Borrower) not otherwise listed on SCHEDULE 7.21; and
(ei) concurrently with the financial statements delivered pursuant to clause (c) hereof, account receivable agings reports;
(j) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants, management letters) as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) Lender may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationreasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (Friendly Ice Cream Corp)
Financial Statements, Certificates and Information. Ryder The Parent and the Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of RyderFiscal Year, the consolidated balance sheet of Ryder the Parent and its Consolidated Subsidiaries Subsidiaries, as at the end of such year, and the related consolidated statements of income and retained earnings and consolidated statement of cash flows flow for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch 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, prepared in accordance with GAAP audited consistently applied, and accompanied certified without qualification and without expression of uncertainty as to the ability of the Parent and its Subsidiaries to continue as going concerns, by a report and opinion of PricewaterhouseCoopers or by other independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 satisfactory to the scope of Administrative Agent (PROVIDED, that for the 2006 Fiscal Year only, such audit. In addition, within one hundred twenty (120) days certification may be issued with a going concern qualification if such qualification is reasonable and necessary in the reasonable judgment of the end of each such fiscal yearindependent certified public accountant), Ryder shall provide the Banks together with (i) a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided PROVIDED that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default; and (ii) a copy of their accountants' management letter (if any) for such Fiscal Year;
(b) as soon as practicable, but in any event not later than sixty within forty-five (6045) days after the end of each Fiscal Quarter, unaudited quarterly consolidated and consolidating financial statements of the first three fiscal quarters of each fiscal year of RyderParent and its Subsidiaries for such Fiscal Quarter (i.e., copies the consolidated and consolidating balance sheet of the consolidated balance sheets of Ryder Parent and its Consolidated Subsidiaries Subsidiaries, as at the end of such quarterFiscal Quarter, and the related consolidated and consolidating statements of income and retained earnings and consolidated and consolidating statement of cash flows flow for such Fiscal Quarter) and the unaudited consolidated and consolidating financial statements of the Parent and its Subsidiaries for the portion period commencing at the end of the fiscal year then endedprevious Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and each prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) consistently applied, together with a certification by the principal financial officer or accounting officer(s) of Ryder the Parent that the consolidated information contained in such financial statements are fairly presents in all material respects the financial condition of the Parent and its Subsidiaries (as a whole) 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, unaudited monthly consolidated and consolidating financial statements of Parent and its Subsidiaries for such month (i.e., the consolidated and consolidating balance sheet of the Parent and its Subsidiaries, as at the end of such month, and the related consolidated and consolidating statements of income and retained earnings and consolidated and consolidating statement of cash flow for such month) and the unaudited consolidated and consolidating financial statements of the Parent and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such month, each, prepared in accordance with GAAP (to consistently applied, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statementsor accounting officer(s) and of the Parent that the information contained in such financial statements fairly present presents in all material respects the consolidated financial condition of Ryder the Parent and its Consolidated Subsidiaries on (as a consolidated basis as at the close of business whole) on the date thereof and the results of operations for the period then ended(subject to year-end adjustments);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed statement certified by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as accounting officer(s) of the end Parent in substantially the form of the applicable period EXHIBIT B hereto (a "Compliance Certificate")
(i) setting forth in reasonable detail computations evidencing compliance with the covenants contained in ss.9 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date and (ii) stating that such compliance officer(s) has caused this Credit Agreement to be reviewed and certifying (i) has no knowledge of any Default or Event of Default exists during such Fiscal Quarter or at the end of such year, or if a such officer(s) has such knowledge, specifying each Default or Event of Default shall then exist, specifying and the nature thereof and (ii) such other matters as are set forth thereinthereof;
(de) as soon as practicable butavailable and in any event no later than within fifteen (15) days after the end of each calendar month, (i) a Collateral Update Certificate, (ii) an Accounts Receivable/Loan Reconciliation Report, (iii) a summary of inventory by type and location, (v) an accounts receivable aging report, and (iv) such other information relating to the Collateral as the Administrative Agent shall reasonably request, in each case, accompanied by such supporting detail and documentation as the Administrative Agent shall reasonably request;
(f) as soon as available and in any eventevent no later than 1:00 p.m. (Boston time) on Tuesday of each week (or, within thirty if such Tuesday is not a Business Day or if the preceding Monday is not a Business Day, in each case, on Wednesday of such week) (30or with greater frequency as the Administrative Agent may request), a Borrowing Base Certificate with respect to the Collateral of the Borrower as of the close of business on the previous Saturday (or, if such day is not a Business Day, on the preceding Business Day), together with such other information relating to the Collateral as the Administrative Agent shall reasonably request, and accompanied by such supporting detail and documentation as the Administrative Agent shall reasonably request;
(g) Business Days not later than December 31st of each calendar year, the annual business plan of the Parent and its Subsidiaries for the succeeding Fiscal Year on a monthly basis in reasonable detail, including projected consolidated balance sheets, statements of income and retained earnings and cash flow statements of the Parent and its Subsidiaries for the succeeding Fiscal Year on a monthly basis, in each case in the same format as the audited balance sheet, statement of income and retained earnings and cash flow statement respectively;
(h) promptly after the issuance sending or filing thereof, copies of all material reports which the Parent or any Subsidiary of a financial nature filed the Parent sends to any of its security holders, and copies of all reports and registration statements which the Parent or any Subsidiary of the Parent files with the Securities and Exchange Commission or any national securities exchange (including, without limitation, all 10-K, 10-Q and 8-K reports), which reports are required to be sent to security holders or so filed by law or by regulation or under the stockholders terms of Ryder the Parent's listing agreement with NASDAQ or any other stock exchange;
(i) from time to time such other financial data and information (including accountants' management letters) as the Administrative Agent or any Lender may reasonably request;
(j) simultaneously with the delivery of the financial statements referred to in subsection (c) above, a Compliance Certificate setting forth in reasonable detail computations evidencing compliance with the financial covenant contained in ss.9;
(k) promptly after delivery or receipt thereof, copies of all notices and other written communications delivered or received by the Parent or any of its Subsidiaries generallyin connection with the Term Loans;
(l) [intentionally omitted];
(m) on Wednesday of each week, a comparison of actual results for the immediately prior one week period to the previously projected results for such one week period as set forth in the Projections; and
(en) from time to timewithin five (5) Business Days after the end of each month, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose updated 13-week projections reflecting any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, changes to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have previously provided Projections. Without limiting the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any generality of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to projections shall detail, on a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks 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 Agentweekly basis, the Joint Lead Arrangers, the Issuing Bank projected outstanding amount of Revolving Loans and the Banks to treat Maximum Drawing Amount for all Letters of Credit for such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationperiod.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (Quaker Fabric Corp /De/)
Financial Statements, Certificates and Information. Ryder The Borrower and each Guarantor will deliver to each of the Banks, the Issuing Bank Agent (and the AgentsAgent will thereafter deliver to the Lenders within a reasonable time) the following information on a consolidated and consolidating basis:
(a) as As soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of RyderBorrower, the consolidated audited balance sheet of Ryder Borrower, on a combined and its Consolidated Subsidiaries as individual basis with respect to each, together with the audited balance sheet, at the end of such year, and the consolidated related individual audited statements of income income, changes in capital and cash flows for Ryder and its Consolidated Subsidiaries such year for the fiscal year then endedBorrower, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, in accordance with GAAP audited and accompanied by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared in accordance with generally accepted auditing standards Generally Accepted Accounting Principles, and shall not be subject to any “going concern” or like accompanied by an auditor’s report prepared without qualification or exception or any qualification or exception as by an accounting firm reasonably acceptable to the scope Agent, and any other information the Agent may reasonably require to complete a financial analysis of such audit. In additionBorrower and the Guarantors, within one hundred twenty (120) days together with a certification by the principal financial or accounting officer of Borrower and the end chief financial officer of each such fiscal yearother entity that the information contained in such financial statements fairly presents the financial position of Borrower and the Guarantors on the date thereof, Ryder shall provide the Banks and together with a written statement from such the reviewing accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as As soon as practicable, but in any event not later than sixty forty five (6045) days after the end of each Fiscal Quarter of Borrower and Signal Landmark, the first three fiscal quarters balance sheet of each fiscal year of RyderBorrower and Signal Landmark, copies of the consolidated balance sheets of Ryder on an aggregated and its Consolidated Subsidiaries as at the end of such quarterindividual basis, and the related consolidated Consolidated statements of income income, changes in capital and cash flows for the portion of the fiscal year then endedelapsed on an aggregated and individual basis, all in reasonable detail and prepared in accordance with GAAP (Generally Accepted Accounting Principles, and showing any variations for such quarter from the initial Project Budget, which information shall be provided in the form of the balance sheet and statements previously provided to the extent GAAP is applicable to interim unaudited financial statements) Agent, together with a certification by the principal financial or accounting officer of Ryder each reporting entity that the consolidated information contained in such financial statements are prepared in accordance with GAAP (to fairly presents the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition position of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business such entity on the date thereof and (subject to year end adjustments). The statements delivered at the results end of operations for the period then endedfiscal year of Borrower shall be audited in accordance with subsection (a) above;
(c) simultaneously Contemporaneously with the delivery of the financial statements referred to in clause (a) and (b) above, a certificate statement of all contingent liabilities of Borrower, Signal Landmark and Signal Holdings which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guarantees, endorsements and other contingent obligations in respect of indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(d) Not later than forty-five (45) days after the end of each month, except ninety (90) days after year-end, a statement (a “Compliance Certificate”) certified by the chief executive officer, chief financial officer, principal finance or accounting officer of Borrower and Signal Landmark in the form of Exhibit C “D” hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in evidencing compliance with §10 hereof as of the end of the applicable period setting forth Financial Covenants, and (if applicable) reconciliations to reflect changes in reasonable detail computations evidencing Generally Accepted Accounting Principles since the Balance Sheet Date, and further certifying that such compliance officer has caused this Agreement to be reviewed and certifying (i) has no knowledge of any Default or Event of Default exists in the performance or observance of any of the provisions hereof during such Fiscal Quarter or at the end of such year, or, if a such officer has such knowledge, specifying each Default or Event of Default shall then exist, specifying and the nature thereof and (ii) such other matters as are set forth thereinthereof;
(de) Simultaneously with the delivery of the Compliance Certificate, the Borrowing Base Report in the form of Exhibit “E” hereto calculating the Borrowing Base (including the detailed calculation of the Borrowing Base Value) in such reasonable detail as soon Agent may request. In addition, at the request of the Agent, Signal Landmark shall submit to the Agent invoices, work orders and other documentation reasonably satisfactory to the Agent supporting the calculation of the costs included in the Borrowing Base;
(f) Not later than the seven (7) days following the end of each month during the term of this Agreement (or on the next Business Day as practicable butapplicable), in for review by the Agent only, a monthly sales report reflecting the sale of any eventBorrowing Base Assets and a schedule of Homes Under Contract, within thirty together with pricing and anticipated closing dates;
(30g) Business Days after Contemporaneously with the issuance thereofdelivery of such information to Borrower, copies of all material investment reports, investment summaries, appraisals or other information relating to the Project;
(h) Copies of a financial nature filed all annual federal income tax returns and amendments thereto of Borrower and the Guarantors;
(i) Not later than the end of each fiscal year, the Project Budget for the Project. The Project Budget shall be in form reasonably satisfactory to the Agent and shall contain such other information as the Agent may request;
(j) Simultaneously with the Securities delivery of the financial statements referred to in subsection (b) above, a statement of all Distributions made by Borrower and Exchange Commission or sent to the stockholders Guarantors and showing the flow of Ryder or any of its Subsidiaries generallysuch; and
(ek) from From time to time, and with reasonable promptness, time such other financial data and other information in the possession of Borrower and the Guarantors (including without limitation auditors’ management letters, market comparable studies, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting Borrower and the Banks Guarantors) as the Agent may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (California Coastal Communities Inc)
Financial Statements, Certificates and Information. Ryder Each Borrower will deliver furnish or cause to be furnished to each of the Banks, the Issuing Bank and the AgentsLender:
(a) as soon as practicable, but, in any event not later than Within one hundred twenty (120) days after the end of each fiscal year of Ryderthe Lead Borrower, (i) the consolidated and consolidating balance sheet sheets of Ryder the Lead Borrower and its Consolidated Subsidiaries as at the end of such year, year and (ii) the related consolidated and consolidating statements of income and surplus and cash flows flow for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the with respect to such consolidated financial statements figures for the previous fiscal year, all such consolidated financial statements to be in reasonable detail, prepared, in accordance together with GAAP audited and accompanied by a report and the opinion thereon of independent certified public accountants of nationally recognized standing selected by Ryderthe Lead Borrower and reasonably satisfactory to the Lenders, which report and opinion shall be in form generally recognized as unqualified and shall state that the financial statements have been prepared in accordance with generally accepted auditing standards accounting principals applied on a basis consistent with that of the preceding fiscal year (except for changes, if any, which shall be specified and shall not be subject approved in such opinion) and that the audit by such accountants in connection with such financial statements referred to any “going concern” or like qualification or exception or any qualification or exception as above only to the scope of such audit. In addition, within one hundred twenty (120) days of extent that the end of each such fiscal year, Ryder shall provide same are required to be prepared by GAAP or by the Banks with a written statement from such accountants to the effect that they have read a copy of this Agreement, Securities and that, in making the examination necessary to said certification, they have obtained no knowledge of Exchange Commission or by any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Defaultother applicable regulatory authority;
(b) as soon as practicable, but in any event not later than sixty Within forty-five (6045) days after the end of each of the first three fiscal quarters of quarterly accounting periods in each fiscal year of Ryderthe Lead Borrower, copies of (i) the unaudited consolidated and consolidating balance sheets of Ryder the Lead Borrower and its Consolidated Subsidiaries as at the end of such quarterperiod, and (ii) the related unaudited consolidated and consolidating statements of income and surplus and cash flows for such period and for the portion period from the beginning of the current fiscal year then endedto the end of such period, all in reasonable detail and prepared in accordance with GAAP (signed by the chief financial officer or treasurer of the Lead Borrower; provided, however, that the Borrowers shall be required to furnish the consolidating financial statements only to the extent that the same are required to be prepared by GAAP is applicable to interim unaudited financial statements) with a certification or by the principal financial officer of Ryder that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is Securities and Exchange Commission or by any other applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof and the results of operations for the period then ended;regulatory authority,
(c) simultaneously Upon furnishing any financial statement required pursuant to Sections 11-4(a) or 11-4 (b) (and monthly upon the failure of the Borrowers to comply with any covenant set forth in Section 5-2 for the delivery purpose of determining the occurrence of a Collateral Provision Event), a compliance certificate substantially in the form of EXHIBIT 11-4CC attached hereto, in each case (A) as of the last Business Day of the immediately preceding reporting period, and (B) signed by the chief financial officer or treasurer of the Lead Borrower;
(d) Together with the financial statements referred delivered pursuant to in (a) and subparagraph (b) above, a certificate detailed list of each Borrower's backlog of revenue-generating government contracts showing services to be provided by each Borrower in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof connection therewith as of the end date of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth thereinfinancial statements;
(de) as soon as practicable butUpon each request for a Loan in connection with a contemplated acquisition, a covenant compliance certificate.
(f) Promptly, but in any eventnot event later than ten (10) days, within thirty (30) Business Days after the issuance thereofsame become publicly available, copies of all material of a financial nature periodic and other reports, proxy statements and other materials filed by the Lead Borrower with the Securities and Exchange Commission or sent to the stockholders of Ryder (including all form 10Q's and 10K's), or any governmental authority succeeding to any of its Subsidiaries or all of the functions of said Commission, or with any national securities exchange, or distributed to is shareholders generally, as the case may be (with the exhibits relating thereto to be provided, at the Lead Borrower's expense, upon the request of the Agents);
(g) Promptly, but in no event later than ten (10) days, upon their becoming available, copies of any periodic or special reports filed by any Borrower or any Subsidiary with any federal, state or local governmental agency or authority, if such reports indicate any Material Adverse Change in the business, operations, affairs, or condition (financial or otherwise) of the Borrowers and the Subsidiaries, taken as whole, or if copies thereof are requested by Lenders, and copies of any notices and communications from any federal, state or local governmental agency or authority which specifically relate to a Borrower or any Subsidiary, which could result in a Material Adverse Change;
(h) Forthwith upon any officer of any Borrower obtaining knowledge of any condition or event which constitutes an Event of Default or which, after notice or lapse of time or both, would constitute an Event of Default, a certificate given by such officer specifying in reasonable detail the nature and period of existence thereof and what action any Borrower has taken or proposes to take with respect thereto;
(i) Within forty-five days of each fiscal year end of the Lead Borrower, annual financial projections for the next fiscal year; and
(ej) To the extent not prohibited by applicable law, such other information regarding the business, affairs and condition of the borrowers and their respective Subsidiaries as such Lender may from time to time, and with reasonable promptness, such other financial data and other information as the Banks may time reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to To the extent practicable not prohibited by applicable law, each Borrower will permit each Lender to inspect the books and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery properties or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf assets of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks and its Subsidiaries at such reasonable times as such Lender may from time to time request. All costs and expenses of any Lender in connection with or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) may have personnel who do not wish to receive material non-public information with respect relating to any request made under this Section 11-4 shall, if no Event of Default has occurred and is continuing, be paid by the Borrowers or their respective AffiliatesLender making such request and, or upon the respective securities occurrence and during the continuance of any an Event of Default, be paid by the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such 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 Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side InformationBorrowers.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. Ryder The Borrower will deliver to each of the Banks, the Issuing Bank and the AgentsLenders:
(a) as soon as practicable, but, but in any event not later than one hundred twenty ninety (12090) days after the end of each fiscal year of Ryderthe Borrower, the consolidated balance sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such year, and the related consolidated statements statement of income and consolidated statement of cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year then endedsuch year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated financial statements to be in reasonable detail, prepared, prepared in accordance with GAAP audited GAAP, and accompanied certified, without qualification and without an expression of uncertainty as to the ability of the Borrower or any of its Subsidiaries to continue as going concerns, by a report and opinion of independent certified public accountants of nationally recognized standing selected by Ryder, which report and opinion shall be prepared 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 satisfactory to the scope of such audit. In additionAdministrative Agent, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks Lenders for failure to obtain knowledge of any Default or Event of Default. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to deliver the foregoing financial information by delivering copies of the Borrower’s annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto; provided, that (x) the Borrower is required to file such annual report on Form 10-K with the SEC, (y) such filing is actually made and (z) such annual report and financial statements are delivered within ninety (90) days after the end of each fiscal year of the Borrower and are otherwise in compliance with this §8.4(a);
(b) as soon as practicable, but in any event not later than sixty forty-five (6045) days after the end of each of the first three fiscal quarters of each in any fiscal year of Ryderthe Borrower, copies of the unaudited consolidated balance sheets sheet of Ryder the Borrower and its Consolidated Subsidiaries as at the end of such quarter, and the related consolidated statements statement of income and consolidated statement of cash flows for the portion of the Borrower’s fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) GAAP, together with a certification by the principal financial or accounting officer of Ryder the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments). Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to deliver the foregoing financial information by delivering copies of the Borrower’s quarterly report on Form 10-Q in respect of such fiscal year, together with the financial statements required to be attached thereto; provided, that (x) the Borrower is required to file such quarterly report on Form 10-Q with the SEC, (y) such filing is actually made and (z) such quarterly report and financial statements are delivered within forty-five (45) days after the end of each of the first three fiscal quarters in any fiscal year of the Borrower and are otherwise in compliance with this §8.4(b);
(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 are of the Borrower and its Subsidiaries for such month setting forth in comparative form the figures from the actual historical figures for the previous year and a comparison setting forth the corresponding figures from the projected figures set forth in the projections described in §8.4(g) for such period, prepared in accordance with GAAP (to GAAP, together with a certification by the extent GAAP is applicable to interim unaudited principal financial statements) and or accounting officer of the Borrower that the information contained in such financial statements fairly present presents the consolidated financial condition of Ryder the Borrower and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to quarter-end and the results of operations for the period then endedyear-end adjustments);
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate in the form of Exhibit C hereto (the “Compliance Certificate”) signed by the principal financial officer, treasurer or assistant treasurer of Ryder, stating that Ryder and its Consolidated Subsidiaries are in compliance with §10 hereof as of the end of the applicable period setting forth in reasonable detail computations evidencing such compliance and certifying (i) no Default or Event of Default exists or if a Default or Event of Default shall then exist, specifying the nature thereof and (ii) such other matters as are set forth therein;
(de) as soon as practicable but, in any event, within thirty (30) Business Days after contemporaneously with the issuance filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Ryder the Borrower generally;
(f) projections of the Borrower and its Subsidiaries updating those projections delivered to the Lenders and referred to in §7.4.3 and if applicable, updating any later such projections delivered in response to a request pursuant to this §8.4(f);
(g) a twelve-month forecast, including the consolidated balance sheet of the Borrower and its Subsidiaries and related consolidated statements of income and cash flow, to be delivered to the Lenders prior to January 15 of each fiscal year of the Borrower;
(h) not less than once during any twelve-month period, account numbers and location of all material bank accounts of the Borrower or any of its Restricted Subsidiaries generally(as reasonably determined by the Borrower) not otherwise listed on Schedule 7.21; and
(ei) concurrently with the financial statements delivered pursuant to clause (c) hereof, account receivable agings reports;
(j) from time to time, and with reasonable promptness, time such other financial data and other information (including accountants, management letters) as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by Law, including, without limitation, with respect to requests or directives, whether or not having the force of law. Except for any such disclosure to governmental banking regulatory authorities upon the request therefor, the applicable Agent or Bank or the Issuing Bank shall, to the extent practicable and legally permissible, provide prompt written notice to Ryder so that Ryder may have the opportunity to contest such disclosure and such Agent or Bank or the Issuing Bank shall use reasonable efforts within Law to maintain the confidentiality of such Information. Documents required to be delivered pursuant to §§8.4(a), (b) and (c) (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 Ryder posts such documents, or provides a link thereto on its website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on Ryder’s behalf on an Internet or intranet website, if any, to which each Bank and the Agents have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Ryder shall deliver paper copies of such documents to the Administrative Agent or any Bank that requests Ryder to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Bank and (ii) Ryder shall notify the Administrative Agent and each Bank (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 Ryder shall be required to provide paper copies of the Compliance Certificates required by §8.4(c) 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 Ryder with any such request for delivery, and each Bank shall be 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 Joint Lead Arrangers will make available to the Banks and the Issuing Bank materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”) Lender may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §29); (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 Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Informationreasonably request.” Notwithstanding the foregoing, no Borrower shall be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Revolving Credit Agreement (Friendly Ice Cream Corp)