Financial and Other Reporting. The Borrower shall furnish to (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of the Lenders): (a) as soon as practicable and in any event within ninety (90) days after the end of each Fiscal Year, (i) the annual financial statements of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end; (b) as soon as practicable and in any event within forty-five (45) days after the end of each calendar month of each Fiscal Year, (i) the unaudited monthly financial statements of each Obligor (other than Mitsui) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at such calendar month end; (c) as soon as practicable and in any event within forty-five (45) days after the end of each three-month accounting period of each Fiscal Year of Mitsui, the unaudited quarterly financial statements of Mitsui prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from management; (d) at least sixty (60) days prior to the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Year. (e) [intentionally deleted]; (f) without duplication, all material notifications, information, certificates and reports under the Material Project Documents; (g) prior to the Commercial Operation Date, copies of any material reports received from the Contractor or any other reports that the Agent may request from time to time, acting reasonably; and (h) from time to time, such other reports and additional information regarding the Project or any of the assets of the Borrower as Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Loan Agreement (BioAmber Inc.)
Financial and Other Reporting. The Borrower shall furnish Keep adequate records and books of account with respect to (or its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be prepared and to be furnished to) (by e-mail in pdf format or by such other method of delivery as the to DIP Agent may reasonably request) the Agent and DIP Lenders the following statements and reports, each such statement and report (all to be prepared in form accordance with GAAP applied on a consistent basis, unless such Borrower's certified public accountants concur in any change therein, such change is disclosed to DIP Agent and substance satisfactory to the Lenders (is consistent with sufficient copies for all of the LendersGAAP):
(ai) as soon as practicable available, but in no event later than April 30, 2015, unaudited balance sheets of Borrowers and in any event within ninety (90) days after their respective Subsidiaries as of the end of Fiscal Year 2014 and the related statements of income, shareholders’ equity and cash flow, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year, (i) and certified by the annual principal financial statements officer of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each SRC as prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) GAAP and fairly presenting the unaudited annual Consolidated financial statements position and results of BioAmber Luxco and, operations of Borrowers and their Subsidiaries for the Fiscal Year ending December 31, 2014, the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year endsubject only to changes from audit and year end adjustments and except that such statements need not contain notes;
(bii) as soon as practicable available, and in any event within forty-five (45) days after the end of each calendar month of each the first three (3) Fiscal Quarters in any Fiscal Year, (i) excluding the last Fiscal Quarter of Borrowers’ Fiscal Year, unaudited monthly balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such Fiscal Quarter and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year, and certified by the principal financial statements officer of each Obligor (other than Mitsui) Borrowers as prepared in accordance with Applicable Accounting Principles (GAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to annual changes from audit and year end adjustments and the absence of except that such statements need not contain notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at such calendar month end;
(ciii) as soon as practicable available, and in any event within forty-five thirty (4530) days after the end of each three-Fiscal Month hereafter, unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such month accounting period and for the portion of each Borrowers’ Fiscal Year of Mitsuithen elapsed, on a Consolidated basis, setting forth in each case in comparative form, the unaudited quarterly corresponding figures for the preceding Fiscal Year, and certified by the principal financial statements officer of Mitsui SRC as prepared in accordance with Applicable Accounting Principles (GAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Month and period subject only to annual changes from audit and year end adjustments and except that such statements need not contain notes;
(iv) [Reserved];
(v) not later than fifteen (15) days after each Fiscal Month, if so requested by DIP Agent, (a) a listing of all of each Borrower’s trade payables as of the absence last Business Day of notessuch Fiscal Month, specifying the name of and balance due each trade creditor, and, at DIP Agent’s request, monthly detailed trade payable agings in the form customarily prepared by Borrowers and approved by DIP Agent and (b) consisting Inventory reports by each location of Borrowers and their respective Subsidiaries;
(vi) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which any Borrower has made generally available to its shareholders and copies of any regular, periodic and special public reports or registration statements which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange;
(vii) all information, reports and other documents provided at any time by a balance sheet Borrower to Term DIP Agent or to a Term DIP Lender, promptly after the sending of such information, reports or other documents;
(viii) an initial 13-week professional fees budget and statements an updated professional fees budget for each successive 13-week period thereafter (the “Professional Fees Budget”) setting forth in reasonable detail and specificity the projected fees and reimbursable expenses of income and retained earnings (or deficit) and of changes in cash position, together with the Professionals;
(i) a comparison As soon as practicable in advance of filing with the Court or delivering to the prior period Committee appointed in a Chapter 11 Case, if any, or to the United States Trustee for the District of Delaware, as the case may be, the Final DIP Financing Order, all other proposed orders and yearpleadings related to the Chapter 11 Cases, the DIP Facility and/or any sale contemplated in accordance with Section 9.1.18 hereof (all of which must be in form and substance satisfactory to DIP Agent), any Chapter 11 Plan and/or any disclosure statement related thereto and (ii) a corresponding discussion and analysis substantially simultaneously with the filing with the Court or delivering to the Committee appointed in any Chapter 11 Case, if any, or to the United States Trustee for the District of results from managementDelaware, as the case may be, all other notices, filings, motions, pleadings or other information concerning the financial condition of Borrowers or the Chapter 11 Cases that may be filed with the Court or delivered to the Committee appointed in any Chapter 11 Case, if any, or to the United States Trustee for the District of Delaware;
(dx) at least sixty An updated DIP Budget and an updated Professional Fee Budget every two (602) days prior weeks, each in form and substance satisfactory to DIP Agent: and
(xi) such other reports and information (financial or otherwise) as DIP Agent may reasonably request from time to time in connection with any Collateral or any Obligor’s financial condition or business. Concurrently with the start delivery of each Fiscal Yearthe financial statements described in clause (i) of this Section 9.1.4, or more frequently if requested by DIP Agent or any DIP Lender during any period that a proposed updated operatingDefault or Event of Default exists, maintenance Borrowers shall cause to be prepared and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on furnished to DIP Agent and DIP Lenders a monthly basis, which Proposed OMC Budget shall be subject to review and approval Compliance Certificate executed by the Lenders in consultation with chief financial officer of SRC. Promptly after the Independent Technical Consultant and sending or filing thereof, Borrowers shall be revised also provide to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Year.
(e) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under the Material Project Documents;
(g) prior to the Commercial Operation Date, DIP Agent copies of any material reports received from the Contractor or any annual report to be filed in accordance with ERISA in connection with each Plan and such other reports that the Agent may request data and information (financial and otherwise) as DIP Agent, from time to time, acting reasonably; and
may reasonably request bearing upon or related to the Collateral or any Borrower’s and each of its Subsidiaries’ financial condition or results of operations. Borrowers hereby acknowledge that (hi) from time DIP Agent or BofA will make available to timeDIP Lenders and Letter of Credit Issuer materials and/or information provided by or on behalf of Borrowers hereunder (collectively, such other reports “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and additional (ii) certain of DIP Lenders (each, a “Public DIP Lender”) may have personnel who do not wish to receive material non-public information regarding with respect to Borrowers or their Affiliates, or the Project or respective securities of any of the assets foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Borrowers hereby agree that (a) all Borrower Materials that are to be made available to Public DIP 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; (b) by marking Borrower Materials “PUBLIC,” Borrowers shall be deemed to have authorized DIP Agent, Letter of Credit Issuer and DIP Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrowers or their securities for purposes of United States Federal and state securities laws; (c) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (d) DIP Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as Agent or any Lender may reasonably requestbeing suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Standard Register Co)
Financial and Other Reporting. The Borrower shall Such Originator will maintain, for itself and each of its Subsidiaries, a system of accounting established and administered in accordance with GAAP, and furnish to Purchaser (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of the Lendersits assigns):
(a) as As soon as practicable available and in any event within ninety (90) 90 days after the end of each Fiscal Yearfiscal year of PCI, (i) the annual financial audit report of PCI and its Subsidiaries prepared on a consolidated basis and in conformity with GAAP, consisting of at least statements of each income, cash flow, changes in financial position and stockholders’ equity, and a consolidated balance sheet as at the end of BioAmber and Mitsui andsuch year, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, setting forth in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower and (iii) a Compliance Certificate comparative form corresponding figures from the Borrower prepared as at previous annual audit, certified without qualification by independent certified public accountants of recognized standing selected by PCI and acceptable to the Agent and the Buyers, together with any management letters, management reports or other supplementary comments or reports to PCI or its board of directors furnished by such Fiscal Year end;accountants.
(b) as As soon as practicable available and in any event within forty-five (45) 45 days after the end of each calendar month of the first three fiscal quarters of each Fiscal Yearfiscal year, (i) a copy of the unaudited monthly financial statement of PCI and its Subsidiaries, prepared on the basis of the same accounting principles applied in the preparation of the annual audited financial statements referred to in Section 5.1(a) (but omitting footnotes and year-end adjustments), signed by a Financial Officer of each Obligor (other than Mitsui) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) PCI, consisting of a balance sheet and at least consolidated statements of income and retained earnings (or deficit) cash flow for PCI and the Subsidiaries for such quarter and for the period from the beginning of changes in cash position, together with (A) a comparison such fiscal year to the prior period and yearend of such quarter, and (B) a consolidated balance sheet of PCI as at the end of such quarter setting forth in each case in comparative form corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate figures from the Borrower prepared as at such calendar month end;previous year.
(c) Together with the financial statements furnished by PCI under Sections 5.1(a) and (b), a statement signed by a Financial Officer of PCI demonstrating in reasonable detail compliance (or noncompliance, as soon the case may be) with each of the restrictions contained in Article V and stating that as practicable and in any event within forty-five (45) days after at the end date of each three-month accounting such financial statement there did not exist any Unmatured Termination Event or Termination Event or, if an Unmatured Termination Event or Termination Event existed, specifying the nature and period of each Fiscal Year of Mitsui, existence thereof and what action the unaudited quarterly financial statements of Mitsui prepared in accordance Originator proposes to take with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from management;respect thereto.
(d) at least sixty (60) days prior to the start Immediately upon becoming aware of each Fiscal Yearany Unmatured Termination Event or Termination Event, a proposed updated operating, maintenance notice describing the nature thereof and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject what action such Originator proposes to review and approval by the Lenders in consultation take with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Yearrespect thereto.
(e) [intentionally deleted];Promptly upon the mailing or filing thereof, copies of all financial statements, reports and proxy statements mailed to PCI’s shareholders, and copies of all registration statements, periodic reports and other documents filed with the Securities and Exchange Commission (or any successor thereto) or any national securities exchange.
(f) without duplicationImmediately upon becoming aware of the occurrence thereof, all material notificationsnotice of the institution of any litigation, informationarbitration or governmental proceeding, certificates or the rendering of a judgment or decision in such litigation or proceeding, which could constitute an Adverse Event, and reports under the Material Project Documents;steps being taken by the Person(s) affected by such proceeding.
(g) prior Immediately upon becoming aware of the occurrence thereof, notice of any violation as to any environmental matter by PCI, any Subsidiary and of the commencement of any judicial or administrative proceeding relating to health, safety or environmental matters (i) in which an adverse determination or result could result in the revocation of or have a material adverse effect on any operating permits, air emission permits, water discharge permits, hazardous waste permits or other permits held by PCI or any Subsidiary which are material to the Commercial Operation Dateoperations of PCI or such Subsidiary, copies of or (ii) which will or threatens to impose a material liability on PCI or such Subsidiary to any Person or which will require a material reports received from the Contractor expenditure by PCI or such Subsidiary to cure any other reports that the Agent may request from time to time, acting reasonably; andalleged problem or violation.
(h) from From time to time, such other reports and additional information regarding the Project or any business, operation and financial condition of PCI and the assets of Subsidiaries as the Borrower as Agent or any Lender Purchaser may reasonably request.
Appears in 1 contract
Samples: Receivables Sale Agreement (Patterson Companies, Inc.)
Financial and Other Reporting. The Borrower shall will furnish to (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of Administrative Agent at the Lenders):Administrative Agent’s Office at the address set forth in Section 10.1:
(a) as soon as practicable and in any event within ninety (90) days after the end of each Fiscal Year, (i) the annual financial statements of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end;
(b) as As soon as practicable and in any event within forty-five (45) days (or, if earlier, on the date of any required public filing thereof) after the end of each calendar month the first three fiscal quarters of each Fiscal YearYear (commencing with the fiscal quarter ended July 25, (i) 2021), an unaudited Consolidated statement of financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited monthly Consolidated statements of operations, changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of each Obligor (other than Mitsui) the Fiscal Year then ended, including the notes thereto, all prepared by the Borrower in accordance with Applicable Accounting Principles (GAAP and certified by the chief financial officer of the Borrower to present fairly in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as of their respective dates and the Consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to annual audit normal year end adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at such calendar month endfootnotes;
(cb) as As soon as practicable and in any event within forty-five seventy (4570) days (or, if earlier, on the date of any required public filing thereof) after the end of each three-month accounting period of each Fiscal Year (commencing with the fiscal year ended October 31, 2021), an audited Consolidated statement of Mitsuifinancial position of the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated statements of operations, the unaudited quarterly changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements of Mitsui for the Fiscal Year then ended, including the notes thereto, all prepared in accordance with Applicable Accounting Principles GAAP. Such annual financial statements shall be audited by Ernst & Young LLP or other independent certified public accounting firm of recognized national standing and accompanied by a report thereon by such certified public accountants that is not qualified with respect to scope limitations imposed by the Borrower or any of its Subsidiaries or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with GAAP;
(subject c) At each time financial statements are delivered pursuant to annual audit adjustments and the absence of notesSections 6.1(a) consisting of a balance sheet and statements of income and retained earnings or (or deficitb) and of changes in cash positionat such other times as the Administrative Agent shall reasonably request, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from managementan Officer’s Compliance Certificate;
(d) at least sixty (60) days prior to Promptly upon the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process request of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Year.
(e) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under the Material Project Documents;
(g) prior to the Commercial Operation DateAdministrative Agent, copies of any material reports received from submitted to the Contractor Borrower or any of its Subsidiaries or any of their respective boards of directors (or committees thereof) by their respective independent public accountants in connection with their auditing function;
(e) Promptly upon the request thereof, such other reports that information and documentation required by bank regulatory authorities under applicable “know your customer” regulations and Anti-Money Laundering Laws or Anti-Corruption Laws (including, without limitation, the Agent may request Act), as from time to timetime reasonably requested by the Administrative Agent or any Lender;
(f) Promptly after the same are available, acting reasonablycopies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(g) Promptly after any Responsible Officer of the Borrower becoming aware thereof, any announcement by Mxxxx’x or S&P of any change in a Debt Rating;
(h) Promptly after any Responsible Officer of the Borrower becoming aware of the occurrence thereof, written notice of:
(i) the commencement of any proceeding or investigation by or before any Governmental Authority or any action or proceeding in any court or before any arbitrator against or involving the Borrower or any of its Subsidiaries or any of their respective properties, assets or businesses that could reasonably be expected to have a Material Adverse Effect;
(ii) (A) any Default or Event of Default or (B) any other event or development which could reasonably be expected to have a Material Adverse Effect; and
(hiii) from time any ERISA Event with respect to timeany Pension Plan which, alone or together with other ERISA Events which have occurred, might result in liability of the Borrower or any of its ERISA Affiliates in excess of $10,000,000 (or, in the case of events described in clause (v) of the definition of ERISA Event, $750,000) (other than for premiums payable under Title IV of ERISA).
(i) Promptly after such request, such other reports and additional information regarding the Project operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the assets of the Borrower as Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to this Section 6.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at wxx.xxxxxxxxxxx.xxx; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Officer’s Compliance Certificates required by Section 6.1(c) to the Administrative Agent. Except for such Officer’s Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (v) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (w) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Lenders and the Issuing Lender to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.11); (x) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” (y) the Administrative Agent and the 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 Investor;” and (z) all Borrower Materials publicly filed with the SEC shall be deemed marked “PUBLIC” and permitted to be made available through a portion of the Platform designated “Public Investor.”
Appears in 1 contract
Financial and Other Reporting. The Borrower shall will furnish to (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of Administrative Agent at the Lenders):Administrative Agent’s Office at the address set forth in Section 10.1:
(a) as soon as practicable and in any event within ninety (90) days after the end of each Fiscal Year, (i) the annual financial statements of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end;
(b) as As soon as practicable and in any event within forty-five (45) days (or, if earlier, on the date of any required public filing thereof) after the end of each calendar month the first three fiscal quarters of each Fiscal YearYear (commencing with the fiscal quarter ended July 25, (i) 2021), an unaudited Consolidated statement of financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited monthly Consolidated statements of operations, changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of each Obligor (other than Mitsui) the Fiscal Year then ended, including the notes thereto, all prepared by the Borrower in accordance with Applicable Accounting Principles (GAAP and certified by the chief financial officer of the Borrower to present fairly in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as of their respective dates and the Consolidated results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to annual audit normal year end adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at such calendar month endfootnotes;
(cb) as As soon as practicable and in any event within forty-five seventy (4570) days (or, if earlier, on the date of any required public filing thereof) after the end of each three-month accounting period of each Fiscal Year (commencing with the fiscal year ended October 31, 2021), an audited Consolidated statement of Mitsuifinancial position of the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated statements of operations, the unaudited quarterly changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements of Mitsui for the Fiscal Year then ended, including the notes thereto, all prepared in accordance with Applicable Accounting Principles GAAP. Such annual financial statements shall be audited by Ernst & Young LLP or other independent certified public accounting firm of recognized national standing and accompanied by a report thereon by such certified public accountants that is not qualified with respect to scope limitations imposed by the Borrower or any of its Subsidiaries or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with GAAP;
(subject c) At each time financial statements are delivered pursuant to annual audit adjustments and the absence of notesSections 6.1(a) consisting of a balance sheet and statements of income and retained earnings or (or deficitb) and of changes in cash positionat such other times as the Administrative Agent shall reasonably request, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from managementan Officer’s Compliance Certificate;
(d) at least sixty (60) days prior to Promptly upon the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process request of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Year.
(e) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under the Material Project Documents;
(g) prior to the Commercial Operation DateAdministrative Agent, copies of any material reports received from submitted to the Contractor Borrower or any of its Subsidiaries or any of their respective boards of directors (or committees thereof) by their respective independent public accountants in connection with their auditing function;
(e) Promptly upon the request thereof, such other reports that information and documentation required by bank regulatory authorities under applicable “know your customer” regulations and Anti-Money Laundering Laws or Anti-Corruption Laws (including, without limitation, the Agent may request Act), as from time to timetime reasonably requested by the Administrative Agent or any Lender;
(f) Promptly after the same are available, acting reasonablycopies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(g) Promptly after any Responsible Officer of the Borrower becoming aware thereof, any announcement by Xxxxx’x or S&P of any change in a Debt Rating;
(h) Promptly after any Responsible Officer of the Borrower becoming aware of the occurrence thereof, written notice of:
(i) the commencement of any proceeding or investigation by or before any Governmental Authority or any action or proceeding in any court or before any arbitrator against or involving the Borrower or any of its Subsidiaries or any of their respective properties, assets or businesses that could reasonably be expected to have a Material Adverse Effect;
(ii) (A) any Default or Event of Default or (B) any other event or development which could reasonably be expected to have a Material Adverse Effect; and
(hiii) from time any ERISA Event with respect to timeany Pension Plan which, alone or together with other ERISA Events which have occurred, might result in liability of the Borrower or any of its ERISA Affiliates in excess of $10,000,000 (or, in the case of events described in clause (v) of the definition of ERISA Event, $750,000) (other than for premiums payable under Title IV of ERISA).
(i) Promptly after such request, such other reports and additional information regarding the Project operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the assets of the Borrower as Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to this Section 6.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at xxx.xxxxxxxxxxx.xxx; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Officer’s Compliance Certificates required by Section 6.1(c) to the Administrative Agent. Except for such Officer’s Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (v) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (w) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.11); (x) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” (y) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor;” and (z) all Borrower Materials publicly filed with the SEC shall be deemed marked “PUBLIC” and permitted to be made available through a portion of the Platform designated “Public Investor.”
Appears in 1 contract
Financial and Other Reporting. The Borrower and the Servicer shall furnish to (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Administrative Agent may reasonably request) and the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of the Lenders):Insurer:
(ai) as soon as practicable available and in any event within ninety 120 days (90or the next succeeding Business Day if the last day of such period is not a Business Day) days after the end of each Fiscal Yearfiscal year, (i) a copy of the annual audited financial statements of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualificationon a consolidated basis) for such Fiscal Yearyear for the Parent and any consolidated Subsidiaries of the Parent, certified by independent public accountants acceptable to the Administrative Agent and each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter other report or statement sent to managementshareholders by the Parent, (ii) a copy of the unaudited annual financial statements (if applicable, on a consolidated basis) for such year for each Transaction Party and any consolidated Subsidiaries of BioAmber Luxco andsuch Transaction Party, certified by the chief financial officer or chief accounting officer of such Transaction Party and stating the information set forth therein fairly presents the financial condition of such Transaction Party and any consolidated Subsidiaries of such Transaction Party in accordance with GAAP as of and for the Fiscal Year ending December 31fiscal year then ended and confirming, 2014in the case of the Recourse Providers, that no Servicing Event of Default described in clause (x), (xi) or (xvi) of Section 6.01(a) of the Borrower Servicing Agreement has occurred, and (iiiii) each other report or statement sent to partners by a Compliance Certificate from the Borrower prepared as at such Fiscal Year endTransaction Party;
(bii) as soon as practicable available and in any event within forty-five 45 days (45or next succeeding Business Day if the last day of such period is not a Business Day) days after the end of each calendar month of the first three quarters of each Fiscal Year, (i) the unaudited monthly financial statements fiscal year of each Obligor (other than Mitsui) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of Transaction Party, a balance sheet (if applicable, on a consolidated basis) of such Transaction Party and any consolidated Subsidiaries of such Transaction Party, as of the end of such quarter and including the prior comparable period, and statements of income (if applicable, on a consolidated basis), of such Transaction Party and retained earnings any consolidated Subsidiaries of such Transaction Party, for such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer or chief accounting officer of such Transaction Party identifying such documents as being the documents described in this paragraph (or deficitii) and stating the information set forth therein fairly presents the financial condition of changes such Transaction Party and any consolidated Subsidiaries of such Transaction Party in cash positionaccordance with GAAP as of and for the periods then ended, together with subject to year-end adjustments consisting only of normal, recurring accruals and confirming, in the case of the Recourse Providers, that no Servicing Event of Default described in clause (Ax), (xi) a comparison to or (xvi) of Section 6.01(a) of the prior period and year, and (B) a corresponding discussion and analysis of results from managementServicing Agreement has occurred, and (ii) each other report or statement sent to partners by a Compliance Certificate from the Borrower prepared as at such calendar month endTransaction Party;
(ciii) as soon as practicable available and in any event by September 30 of each year (or the next succeeding Business Day if September 30 is not a Business Day), an Officer's Certificate stating, as to each signer thereof, that (i) a review of the activities of the Servicer during the year ended on the preceding June 30 and of its performance under this Agreement has been made under such officer's supervision, (ii) to the best of such officer's knowledge, based on such review, the Servicer has fulfilled all its obligations under this Agreement throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof; (iii) the Servicer has complied with the covenants set forth in this Agreement; and (iv) the representations and warranties of the Servicer in Section 4.2 are true and correct as if made on the date of such Officer's Certificate;
(iv) as soon as possible and in any event within forty-five (45) days after the end of each three-month accounting period of each Fiscal Year of Mitsui, the unaudited quarterly financial statements of Mitsui prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from management;
(d) at least sixty (60) days prior to the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day periodBusiness Days after the occurrence of an Event of Default or Potential Event of Default, then the Independent Technical Consultant shall not be involved with the approval process statement of the Proposed OMC Budget chief financial officer or chief accounting officer of the Borrower or the Servicer, as applicable, setting forth complete details of such Event of Default or Potential Event of Default and the OMC Budget for action which the immediately following Fiscal Year.
(e) [intentionally deleted]Borrower or the Servicer has taken, is taking and proposes to take with respect thereto;
(fv) without duplicationon or before September 30 of each calendar year, all material notificationscommencing September 30, information2003, certificates and reports under the Material Project Documents;
(g) prior a letter from a firm of independent public accountants acceptable to the Commercial Operation DateAdministrative Agent (which may be the same firm that certifies the audited financial statements referred to in subsection (i) above) to the effect that such firm has examined the Determination Date Reports and such Records relating to the Loans as such firm deems necessary as a basis for the report contemplated by this subsection (v) and has issued its report therefor and that such examination (1) was made in accordance with generally accepted auditing standards, copies and accordingly included such tests of any material reports received from the Contractor or any other reports that the Agent may request from time to time, acting reasonably; and
(h) from time to time, accounting records and such other reports and additional information regarding audit procedures as such firm considered necessary in the Project or any circumstances; (2) included an examination of the assets delinquency and loss statistics relating to the loans serviced by the Servicer; and (3) except as described in the report, disclosed no exceptions or errors in the records relating to loans serviced for others that, in the firm's opinion, requires such firm to report. The accountant's report shall further state that (1) the Servicer has completed with the minimum servicing standards in the Uniform Single Attestation Program for Mortgage Bankers ("USAP") published by the Mortgage Bankers Association of America; (2) except as disclosed in the Borrower as Agent report, no exceptions or any Lender may reasonably request.errors were found; (
Appears in 1 contract
Samples: Loan and Security Agreement (CNL American Properties Fund Inc)
Financial and Other Reporting. The Borrower shall Each Credit Party will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with Agreement Accounting Principles, and furnish to the Administrative Agent:
(i) Within 120 days after the close of each of its Fiscal Years, an unqualified (except for qualifications relating to changes in accounting principles or cause practices reflecting changes in Agreement Accounting Principles and required or approved by CWEI’s independent certified public accountants) audit report certified by independent certified public accountants acceptable to be furnished tothe Administrative Agent, prepared in accordance with Agreement Accounting Principles on a consolidated basis for CWEI and its Subsidiaries, including a consolidated balance sheet as of the end of such period, related profit and loss and reconciliation of surplus statements, and a statement of cash flows and beginning with Fiscal Year 2004 setting forth in each case in comparative form the figures for the previous Fiscal Year, accompanied by any management letter prepared by said accountants.
(ii) Within 60 days after the close of each of the first three (by e-mail in pdf format or by 3) Fiscal Quarters of each Fiscal Year of CWEI, for CWEI and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such other method period and consolidated profit and loss and reconciliation of delivery as the Agent may reasonably request) the Agent the following surplus statements and reportsa statement of cash flows for such Fiscal Quarter and for the period from the beginning of such Fiscal Year to the end of such Fiscal Quarter, all certified by its Chief Financial Officer.
(iii) As soon as delivered, and in any event no later than April 1 and October 1 of each year, the Reserve Reports required on such dates pursuant to Section 4.2.
(iv) Together with the financial statements required under Sections 8.1(i) and 8.1(ii), a compliance certificate in substantially the form of Exhibit B signed by the Chief Financial Officer of CWEI showing the calculations necessary to determine compliance with this Agreement and stating that, to the knowledge of the Authorized Officers, no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof.
(v) Together with the Reserve Reports required under Section 8.1(iii), a report, in reasonable detail, setting forth the Rate Management Transactions then in effect, the notional volumes of and prices for, on a monthly basis and in the aggregate, the Crude Oil and Natural Gas for each such statement Rate Management Transaction and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all term of the Lenders):each such Rate Management Transaction.
(avi) as As soon as practicable possible and in any event within ninety (90) 10 days after receipt by CWEI or any Subsidiary, a copy of (a) any notice or claim to the end effect that CWEI or any Subsidiary is or may be liable to any Person as a result of each Fiscal Yearthe release by CWEI, (i) any Subsidiary, or any other Person of any toxic or hazardous waste or substance into the annual financial statements of each of BioAmber environment, and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end;
(b) as soon as practicable any notice alleging any violation of any national, provincial or local environmental, health or safety law or regulation by CWEI or any Subsidiary, which, in either case with respect to the foregoing clauses (a) and in (b), could reasonably be expected to have a Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of CWEI, copies of all financial statements, reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which CWEI or any event within forty-five of its Subsidiaries files with the Securities and Exchange Commission.
(45ix) days after Together with the end of each calendar month of each Fiscal Year, (i) the unaudited monthly financial statements required under Section 8.1(i), a certificate of good standing for CWEI and each Obligor other Credit Party that has pledged collateral in support of the Obligations from the appropriate governmental officer in its jurisdiction of incorporation or organization.
(x) Such other than Mitsuiinformation (including non-financial information) prepared in accordance with Applicable Accounting Principles (subject as the Administrative Agent or the Required Lenders may from time to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison time reasonably request. If any information which is required to be furnished to the prior period and yearAdministrative Agent under this Section 8.1 is required by law or regulation to be filed with a government body on an earlier date, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from then the Borrower prepared as at such calendar month end;
(c) as soon as practicable and in any event within forty-five (45) days after the end of each three-month accounting period of each Fiscal Year of Mitsui, the unaudited quarterly financial statements of Mitsui prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (i) a comparison information required hereunder shall be furnished to the prior period and year, and (ii) a corresponding discussion and analysis of results from management;
(d) at least sixty (60) days prior to the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any Administrative Agent within five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal YearBusiness Days after such earlier date.
(e) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under the Material Project Documents;
(g) prior to the Commercial Operation Date, copies of any material reports received from the Contractor or any other reports that the Agent may request from time to time, acting reasonably; and
(h) from time to time, such other reports and additional information regarding the Project or any of the assets of the Borrower as Agent or any Lender may reasonably request.
Appears in 1 contract
Financial and Other Reporting. The Borrower shall will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with generally accepted accounting principles, and furnish to the Lenders:
(or cause i) Within ninety (90) days after the close of each of its fiscal years, an unqualified audit report certified by independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be furnished to) (by e-mail in pdf format or certified by such other method of delivery accountants) for itself and its Subsidiaries, including balance sheets as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of the Lenders):
end of such period, related profit and loss and reconciliation of surplus statements, and a statement of cash flows, accompanied by (a) any management letter prepared by said accountants, and (b) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof.
(ii) Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated and consolidating profit and loss and reconciliation of surplus statements and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer.
(iii) As soon as practicable and available, but in any event within ninety (90) days after the end beginning of each Fiscal Year, (i) the annual financial statements fiscal year of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors a copy of the plan and forecast (with no Impermissible Qualificationincluding a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower for such Fiscal Year, each prepared in accordance fiscal year.
(iv) Together with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) the unaudited annual financial statements required under Sections 6.01(i) and 6.01(ii), a compliance certificate in substantially the form of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, Exhibit D signed by an Authorized Officer of the Borrower showing the calculations necessary to determine compliance with this Agreement and (iii) a Compliance Certificate from stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the Borrower prepared as at such Fiscal Year end;nature and status thereof.
(bv) Within 270 days after the close of each fiscal year, a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA.
(vi) As soon as practicable possible and in any event within forty-five (455) days Business Days after the end Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of each calendar month of each Fiscal Yearthe Borrower, (i) the unaudited monthly financial statements of each Obligor (other than Mitsui) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments describing said Reportable Event and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from action which the Borrower prepared as at such calendar month end;proposes to take with respect thereto.
(cvii) as As soon as practicable possible and in any event within forty-five (45) days after the end of each three-month accounting period of each Fiscal Year of Mitsui, the unaudited quarterly financial statements of Mitsui prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from management;
(d) at least sixty (60) days prior to the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day periodBusiness Days after receipt by the Borrower, then a copy of (a) any notice or claim to the Independent Technical Consultant shall not effect that the Borrower or any of its Subsidiaries is or may be involved with the approval process liable to any Person as a result of the Proposed OMC Budget release by the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the OMC Budget for the immediately following Fiscal YearBorrower or any of its Subsidiaries, which, in either case, could have a Material Adverse Effect.
(eviii) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under Promptly upon the Material Project Documents;
(g) prior to the Commercial Operation Datefiling thereof, copies of any material all registration statements and annual, quarterly, monthly or other regular reports received from which the Contractor or any other reports that the Agent may request from time to time, acting reasonably; and
(h) from time to time, such other reports and additional information regarding the Project Borrower or any of its Subsidiaries files with the assets Securities and Exchange Commission.
(ix) Such other information (including non-financial information) of the Borrower or any of its Subsidiaries as the Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Miller Mechanical Contractors Inc)
Financial and Other Reporting. The Borrower shall will maintain, for ----------------------------- itself and each of its Subsidiaries, a system of accounting established and administered in accordance with GAAP, and will furnish to the Lender:
(or cause i) Within 90 days after the close of each of its fiscal years, an unqualified audit report certified by independent certified public accountants acceptable to the Lender, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be furnished to) (by e-mail in pdf format or certified by such other method accountants) for itself and its Subsidiaries, including balance sheets as of delivery the end of such period, related profit and loss and reconciliation of surplus statements, and a statement of cash flows, accompanied by any management letter prepared by said accountants.
(ii) Within 45 days after the close of the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the Agent may reasonably request) the Agent the following close of each such period and consolidated and consolidating profit and loss and reconciliation of surplus statements and reports, each a statement of cash flows for the period from the beginning of such statement and report to be in form and substance satisfactory fiscal year to the Lenders end of such quarter, all certified by its chief financial officer.
(iii) Together with sufficient copies for all the financial statements required under Sections 6.1(i) and (ii), a Compliance Certificate signed by its chief financial officer showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof.
(iv) Within 90 days after the close of each of its fiscal years, a financial projection and budget forecast covering the immediately subsequent two (2) year period.
(v) Within 270 days after the close of each fiscal year, a statement of the Lenders):Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA.
(avi) as As soon as practicable possible and in any event within ninety (90) 10 days after the end Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of each Fiscal Year, (i) the annual financial statements of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) describing said Reportable Event and the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, action which the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end;proposes to take with respect thereto.
(bvii) as As soon as practicable possible and in any event within forty-five (45) 10 days after the end Borrower obtains knowledge thereof, notice of each calendar month (A) the commencement of each Fiscal Yearany action, suit or proceeding against or involving any the Borrower or any of its Subsidiaries not fully covered by insurance where the amount sued for or the value of Property involved, individually or in the aggregate, is in excess of $250,000 or which, if the outcome were adverse, could reasonably be expected to have a Material Adverse Effect, (iB) the unaudited monthly financial statements existence or asserted existence of each Obligor any Lien (other than MitsuiLiens permitted under Section 6.15) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence on any Properties of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at such calendar month end;or any of its Subsidiaries, or (C) any change in the accounting practices and procedures of the Borrower.
(cviii) as As soon as practicable possible and in any event within forty-five (45) 10 days after receipt by the end Borrower, a copy of each three-month accounting period of each Fiscal Year of Mitsui, the unaudited quarterly financial statements of Mitsui prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notesA) consisting of a balance sheet and statements of income and retained earnings (any notice or deficit) and of changes in cash position, together with (i) a comparison claim to the prior period and yeareffect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by the Borrower, and any of its Subsidiaries, or any other Person of any Hazardous Substance into the environment, (iiB) a corresponding discussion and analysis any notice alleging any material violation by the Borrower or any of results from management;
its Subsidiaries of any federal, state or local Environmental Law or any law or regulation relating to health, safety or sanitation, or (dC) at least sixty (60) days prior any notice to the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for effect that the Borrower for or any of its Subsidiaries is the upcoming Fiscal Year on subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a monthly basisrelease of any Hazardous Substance into the environment or any alleged violation of any federal, which Proposed OMC Budget state or local Environmental Law, provided, however, that a copy of any such notice or claim shall be subject required to review and approval by be furnished under this clause (viii) only if it relates to a matter which, if the Lenders in consultation with outcome were adverse to the Independent Technical Consultant and shall Borrower, could reasonably be revised expected to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Yeara Material Adverse Effect.
(eix) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under Promptly upon the Material Project Documents;
(g) prior furnishing thereof to the Commercial Operation Dateshareholders of the Borrower, copies of any material all financial statements, reports received from and proxy statements so furnished.
(x) Promptly upon the Contractor filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which the Borrower or any of its Subsidiaries files with the SEC.
(xi) Such other reports that information (including non-financial information) as the Agent Lender may request from time to time, acting reasonably; and
(h) from time to time, such other reports and additional information regarding the Project or any of the assets of the Borrower as Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Nesco Inc/Ok)
Financial and Other Reporting. The Borrower shall will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with generally accepted accounting principles, and furnish to the Agent:
(i) Within 90 days after the close of each of its fiscal years, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower's independent certified public accountants) audit report (or cause to be furnished toits 10-K) (certified by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory independent certified public accountants acceptable to the Lenders (Lenders, prepared in accordance with sufficient copies Agreement Accounting Principles on a consolidated for all itself and its Subsidiaries, including balance sheets as of the Lenders):
end of such period, related profit and loss and reconciliation of surplus statements, and a statement of cash flows, accompanied by (a) any management letter prepared by said accountants, and (b) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof.
(ii) Within 45 days after the close of the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated unaudited balance sheets (or its 10-Q) as at the close of each such period and consolidated profit and loss and reconciliation of surplus statements and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer, or its 10-Q's.
(iii) Together with the financial statements required under Sections 6.1(i) and (ii), a compliance certificate in substantially the form of Exhibit B signed by its chief financial officer showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof.
(iv) If applicable, within 270 days after the close of each Plan year, a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA.
(v) As soon as practicable possible and in any event within ninety (90) 10 days after the end Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer of each Fiscal Year, (i) the annual financial statements of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) describing said Reportable Event and the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, action which the Borrower and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end;proposes to take with respect thereto.
(bvi) as As soon as practicable possible and in any event within forty10 days after receipt by the Borrower, a copy of (a) any notice or claim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished, if not previously delivered to Agent.
(viii) Promptly upon the filing thereof, copies of all annual, quarterly, monthly or other regular reports which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission, if not previously delivered to Agent.
(ix) On each yearly anniversary of the Closing Date, a certificate of good standing for the Borrower and each other Person which has pledged collateral in support of the Obligations from the appropriate governmental officer in its jurisdiction of incorporation or organization.
(x) Such other information (including non-five financial information) as the Agent or any Lender may from time to time reasonably request.
(45xi) Within thirty (30) days after the end of each calendar month of each Fiscal Yearmonth, (i) the unaudited monthly financial statements of each Obligor (other than Mitsui) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash positioncompleted Borrowing Base Certificate, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at of the end of such calendar month end;and certified by the chief financial officer of the Borrower, including comments as to any Accounts ninety (90) days or more past due and over $1,000,000.
(cxii) as soon as practicable and in any event within forty-five Within thirty (4530) days after the end of each three-month accounting period of each Fiscal Year of Mitsuicalendar month, the unaudited quarterly financial statements of Mitsui prepared accounts receivable aging reports in accordance with Applicable Accounting Principles (subject form and content satisfactory to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from management;
(d) at least sixty (60) days prior to the start of each Fiscal Year, a proposed updated operating, maintenance and capital budget (the “Proposed OMC Budget”) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal YearAgent.
(exiii) [intentionally deleted];Within thirty (30) days after the end of each fiscal quarter of the Borrower, work in process report summaries and backlog reports, in form and content satisfactory to Agent.
(fxiv) without duplication, all material notifications, information, certificates and reports under the Material Project Documents;
(g) prior to the Commercial Operation Date, copies Promptly provide Agent written notice of any material reports received from the Contractor change order(s) or other action(s) as to any other reports that the Agent may request from time to time, acting reasonably; and
(h) from time to time, such other reports and additional information regarding the Project or any Account resulting in a reduction in excess of the assets of the Borrower as Agent or any Lender may reasonably request$500,000.
Appears in 1 contract
Samples: Credit Agreement (Matrix Service Co)
Financial and Other Reporting. The Borrower Until termination of this Financing Agreement and the other Financing Documents and payment and satisfaction in full of all Obligations due hereunder, each Company agrees that, unless the Agent, or the Required Lenders, as the case may be, shall have otherwise consented in writing, ROA will, and if it does not do so, than any other Company will, furnish to (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of the Lenders):
Lender: (a) as soon as practicable available and in any event within no later than ninety (90) days after the end of each Fiscal Yearfiscal year of the Companies (or, (i) if later, the annual date on which such financial statements are filed with the Securities and Exchange Commission), an audited Consolidated Balance Sheet as at the close of such year, related audited consolidated statement of profit and loss, cash flows, stockholders’ equity and reconciliation of surplus of the Companies and all subsidiaries for such year and an unaudited statement of profit and loss for such year for each operating division of BioAmber and Mitsui andthe Companies (including, without limitation, the Quarrying Division, the Manufacturing Division, the Retailing Division), setting forth in each case, in comparative form, the figures for the Fiscal Year ending December 31previous fiscal year, 2015 and thereafter, the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for independent public accountants selected by ROA and satisfactory to the Agent and in such Fiscal Year, each prepared in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter to management, (ii) form as is then required by the unaudited annual financial statements of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower Securities and (iii) a Compliance Certificate from the Borrower prepared as at such Fiscal Year end;
Exchange Commission; (b) as soon as practicable available and in any event within forty-five no later than sixty (4560) days after the end of each calendar month fiscal quarter (or, if later, the date on which such financial statements are filed with the Securities and Exchange Commission), a Consolidated Balance Sheet as at the end of such. period, and related consolidated statement of profit and loss, cash flows, stockholders’ equity and surplus of the Companies and all subsidiaries for such period, and an unaudited statement of profit and loss for such period for each Fiscal Yearoperating division of the Companies (including, without limitation, the Quarrying Division, the Manufacturing Division, the Retailing Division) setting forth in each case, in comparative form, the figures for the corresponding period of the previous fiscal year, certified by an authorized financial or accounting officer of ROA, along with a compliance certificate satisfactory in form and substance to the Agent, certifying that (i) the unaudited monthly financial statements representations and warranties contained in this Financing Agreement are true and correct in all material respects on and as of each Obligor (other than Mitsui) prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence date of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash positionsuch certificate as if made on such date, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from the Borrower prepared as at such calendar month end;
Companies are in compliance with all of the terms and provisions set forth in this Financing Agreement; (c) as soon as practicable and in any event within forty-five thirty (4530) days after the end of each three-month accounting month, a Consolidated Balance Sheet as at the end of such period, statement of profit and loss, cash flows, stockholders’ equity surplus of the Companies and all subsidiaries for such period, and an unaudited statement of profit and loss for such period for each operating division of the Companies (including, without limitation, the Quarrying Division, the Manufacturing Division, the Retailing Division) setting forth in each case, in comparative form, the figures for the corresponding period of the previous fiscal year, certified by an authorized financial or accounting officer of ROA; (d) within thirty (30) days after the end of each Fiscal Year month, a Borrowing Base Certificate certifying the Companies’ Borrowing Base as of Mitsui, the unaudited quarterly financial statements last day of Mitsui prepared in accordance with Applicable Accounting Principles (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash positionsuch month, together with (i) a comparison report, in form and substance, and in such detail, as shall be satisfactory to the prior period Agent, of the amount and yearvalue by location and type of the Inventory, the aging of the Companies’ Accounts, the concentration of each Companies’ customers, and a work-up of each Company’s ineligible Accounts and Inventory, in each case, as of the end of such month; (iie) a corresponding discussion and analysis of results from management;
(d) at least within sixty (60) days prior to days, after the start end of each Fiscal Yearfiscal year, the Companies’ forecasted Consolidated Balance Sheet, and related consolidated statement operations, stockholders’ equity, cash flows and Availability (all prepared on a proposed updated operatingconsistent basis with the Companies’ historical consolidated and consolidating financial statements) together with appropriate supporting details and a statement of underlying assumptions, maintenance and capital budget (the “Proposed OMC Budget”) in each case for the Borrower for the upcoming Fiscal Year forthcoming fiscal year, prepared on a monthly month-to-month basis, which Proposed OMC Budget shall be subject to review ; and approval by the Lenders in consultation with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Year.
(e) [intentionally deleted];
(f) without duplication, all material notifications, information, certificates and reports under the Material Project Documents;
(g) prior to the Commercial Operation Date, copies of any material reports received from the Contractor or any other reports that the Agent may request from time to time, acting reasonably; and
(h) from time to time, such other reports and additional further information regarding the Project operations, business affairs and financial condition of any Company, any subsidiary of any Company, or any division of the assets of Companies or such subsidiaries as the Borrower as Agent or any Lender may reasonably request, including, without limitation, updated cash flow projections and information regarding same retail store sales, each in form satisfactory to the Agent and the management letter from the public accountants at fiscal year end. Each financial statement required hereunder must be accompanied by an officer’s certificate, signed by the President, Vice President, Controller, or Treasurer, pursuant to which any one such officer must certify that during the particular accounting period: (i) there has been no Default or Event of Default under this Financing Agreement, provided, however, that if any such officer has knowledge that any such Default or Event of Default has occurred during such period, the existence of and a detailed description of same shall be set forth in such officer’s certificate; and (ii) no Company has received any notice of cancellation with respect to its property insurance policies. Each such officer’s certificate shall also set forth reasonably detailed calculations of the Companies’ Availability as of the last day of the applicable accounting period, Fixed Charge Coverage Ratio, Leverage Ratio and Capital Expenditures for the period then ended and set forth such other information as will demonstrate the Companies’ compliance with Paragraphs 12, 13 and 14, respectively, of Section 7.
Appears in 1 contract
Financial and Other Reporting. The Borrower shall will furnish to (or cause to be furnished to) (by e-mail in pdf format or by such other method of delivery as the Agent may reasonably request) the Agent the following statements and reports, each such statement and report to be in form and substance satisfactory to the Lenders (with sufficient copies for all of Administrative Agent at the Lenders):Administrative Agent’s Office at the address set forth in Section 10.1:
(a) as As soon as practicable and in any event within ninety forty (9040) days (or, if earlier, on the date of any required public filing thereof) after the end of the first three fiscal quarters of each Fiscal YearYear (commencing with the fiscal quarter ended April 25, (i) 2010), an unaudited Consolidated statement of financial position of the annual Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated statement of operations, changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of each of BioAmber and Mitsui and, for the Fiscal Year ending December 31then ended, 2015 and thereafterincluding the notes thereto, all prepared by the Borrower, in each case audited by its Auditors (with no Impermissible Qualification) for such Fiscal Year, each prepared Borrower in accordance with Applicable Accounting Principles and, if prepared, such Auditors’ letter GAAP and certified by the chief financial officer of the Borrower to management, (ii) present fairly in all material respects the unaudited annual financial statements condition of BioAmber Luxco and, for the Fiscal Year ending December 31, 2014, the Borrower and (iii) its Subsidiaries on a Compliance Certificate from Consolidated basis as of their respective dates and the results of operations of the Borrower prepared as at such Fiscal Year endand its Subsidiaries for the respective periods then ended, subject to normal year end adjustments and the absence of footnotes;
(b) as As soon as practicable and in any event within forty-five sixty (4560) days (or, if earlier, on the date of any required public filing thereof) after the end of each calendar month Fiscal Year (commencing with the fiscal year ended October 31, 2010), an audited Consolidated statement of each financial position of the Borrower and its Subsidiaries as of the close of such Fiscal YearYear and audited Consolidated statements of operations, (i) the unaudited monthly changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements of each Obligor (other than Mitsui) for the Fiscal Year then ended, including the notes thereto, all prepared in accordance with Applicable Accounting Principles (subject GAAP. Such annual financial statements shall be audited by Ernst & Young LLP or other independent certified public accounting firm of recognized national standing and accompanied by a report thereon by such certified public accountants that is not qualified with respect to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficit) and of changes in cash position, together with (A) a comparison to the prior period and year, and (B) a corresponding discussion and analysis of results from management, and (ii) a Compliance Certificate from scope limitations imposed by the Borrower prepared as at such calendar month endor any of its Subsidiaries or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with GAAP;
(c) as soon as practicable and in any event within forty-five (45) days after the end of At each three-month accounting period of each Fiscal Year of Mitsui, the unaudited quarterly time financial statements of Mitsui prepared in accordance with Applicable Accounting Principles are delivered pursuant to Sections 6.1(a) or (subject to annual audit adjustments and the absence of notes) consisting of a balance sheet and statements of income and retained earnings (or deficitb) and of changes in cash positionat such other times as the Administrative Agent shall reasonably request, together with (i) a comparison to the prior period and year, and (ii) a corresponding discussion and analysis of results from managementan Officer’s Compliance Certificate;
(d) at least sixty (60) days prior Promptly upon the request of the Administrative Agent, copies of any material reports, submitted to the start Borrower or any of each Fiscal Year, a proposed updated operating, maintenance and capital budget its Subsidiaries or any of their respective boards of directors (the “Proposed OMC Budget”or committees thereof) for the Borrower for the upcoming Fiscal Year on a monthly basis, which Proposed OMC Budget shall be subject to review and approval by the Lenders their respective independent public accountants in consultation connection with the Independent Technical Consultant and shall be revised to include changes required by the Lenders or the Independent Technical Consultant, acting reasonably until the Lenders, in consultation with the Independent Technical Consultant have indicated that they are satisfied with and have approved such Proposed OMC Budget (such approved Proposed OMC Budget, the “OMC Budget”), provided that if during any Fiscal Year the Plant does not fail at any time to produce sixty-six (66) metric tonnes of Product per day for any five (5) consecutive day period, then the Independent Technical Consultant shall not be involved with the approval process of the Proposed OMC Budget and the OMC Budget for the immediately following Fiscal Year.their auditing function;
(e) [intentionally deleted]Promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable “know your customer” and Anti-Money Laundering rules and regulations (including, without limitation, the Act), as from time to time reasonably requested by the Administrative Agent or any Lender;
(f) without duplicationPromptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all material notificationsannual, informationregular, certificates 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 Material Project DocumentsSecurities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(g) prior to the Commercial Operation DatePromptly upon becoming aware thereof, copies any announcement by Xxxxx’x or S&P of any material reports received from change in a Debt Rating;
(h) Promptly upon becoming aware of the Contractor occurrence thereof, written notice of:
(i) the commencement of any proceeding or investigation by or before any Governmental Authority or any action or proceeding in any court or before any arbitrator against or involving the Borrower or any of its Subsidiaries or any of their respective properties, assets or businesses that could reasonably be expected to have a Material Adverse Effect;
(ii) (A) any Default or Event of Default or (B) any other reports that the Agent may request from time event or development which could reasonably be expected to time, acting reasonablyhave a Material Adverse Effect; and
(hiii) from time any ERISA Event with respect to timeany Pension Plan which, alone or together with other ERISA Events which have occurred, might result in liability of the Borrower or any of its ERISA Affiliates in excess of $10,000,000 (or, in the case of events described in clause (v) of the definition of ERISA Event, $750,000) (other than for premiums payable under Title IV of ERISA).
(i) Promptly after such request, such other reports and additional information regarding the Project operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the assets of the Borrower as Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
