Financial Statements and Related Information. During the Term and, as applicable, the Option Term and any Renewal Term, for so long as Off-Taker is required to consolidate the financial statements of Provider with the financial statements of Off-Taker as reasonably determined by Off-Taker in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) (such consolidation requirement being referred to hereafter as the “Consolidation”), Provider shall: (a) no later than the beginning of the fifth (5th) business day following the end of each Month, or sooner if available, provide to Off-Taker the preliminary income statement and balance sheet of Provider for such Month, and no later than the end of the fifth (5th) business day following the end of each Month, provide to Off-Taker an updated income statement and balance sheet of Provider for such month, each prepared in accordance with U.S. GAAP, consistently applied; (b) promptly provide Off-Taker with an updated income statement and balance sheet if any changes are made, as applicable, to such income statement or balance sheet of Provider following the end of such Month; (c) no later than fifteen (15) business days following the end of each calendar quarter transpiring during the Term and Option Term during which Consolidation is required, provide to Off-Taker financial information for such quarter, including a final balance sheet and the related statement of income and cash flows, each prepared in accordance with U.S. GAAP, consistently applied; (d) no later than one hundred and twenty (120) days following the end of each fiscal year, provide to Off-Taker audited financial statements and footnotes of Provider, including a balance sheet and the related statements of income and cash flows, each prepared in accordance with U.S. GAAP, consistently applied, and reported on by an independent registered public accounting firm; (e) promptly after receipt of a request from Off-Taker, provide Off-Taker with such financial or other information as Off-Taker may reasonably request in order to enable Off-Taker to complete the Consolidation; (f) promptly after receipt of a request from Off-Taker, provide Off-Taker with such financial or other information as Off-Taker may reasonably request in connection with Off-Taker’s quarterly and annual planning process, including annual business plan information no later than seventy five (75) calendar days prior to end of the prior year; (g) promptly after receipt of a request from Off-Taker, provide Off-Taker with such financial or other information as Off-Taker may reasonably request in order to enable Off-Taker to prepare the reports which Off-Taker is obligated to file with the Securities and Exchange Commission; (h) allow Off-Taker and its employees and designated agents, at all reasonable times during normal business hours, to audit, examine and make copies or extracts from the books of account records, files and bank statements of Provider as Off-Taker may reasonably request in order to enable it to complete the Consolidation and, to the extent necessary for Off-Taker to meet its requirements under Section 404 of the Xxxxxxxx-Xxxxx Act of 2002 (and any similar subsequent regulatory requirements), to assess the internal controls over financial reporting of Provider. The books and records of Provider shall be subject to retention policies that are reviewed and approved by Off-Taker. The financial information described in clauses (a), (b) and (c) above shall be accompanied by a certification signed by the Principal Accounting Officer of Provider stating that: (i) To the best of such officer’s knowledge and belief, the financial information fairly presents, in all material respects, the financial condition, results of operations and, in the case of the financial information provided pursuant to clause (c), cash flows of Provider as of and for the period presented in the report; (ii) Such officer is responsible for establishing and maintaining disclosure controls and procedures and internal control over financial reporting for Provider and has: (y) designed such disclosure controls and procedures to ensure that Material Information relating to Provider is made known to such officer by others within the entity, particularly during the period for which the report is being prepared; and (z) designed such internal controls over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial information in accordance with U.S. GAAP; (iii) For the purposes of Off-Taker’s assessment of the materiality of misstatements in Off-Taker’s financial statements pursuant to SEC Staff Accounting Bulletin No. 99, all Material information has been provided to Off-Taker regarding all known unadjusted misstatements of financial data that has been submitted to Off-Taker. As used in this provision, the term “Material” shall mean any amount over $500,000; (iv) Any significant deficiencies in the design or operation of internal controls that could adversely affect Provider’s ability to record, process, summarize and report financial data of which such officer is aware have been made know to Off-Taker; and (v) Any fraud, whether or not material, that involves management or other employees who have a significant role in Provider’s internal controls of which such officer is aware has been made known to the Off-Taker.
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Samples: Coke Sale and Feed Water Processing Agreement, Coke Sale and Feed Water Processing Agreement (SunCoke Energy, Inc.), Coke Sale and Feed Water Processing Agreement (SunCoke Energy, Inc.)
Financial Statements and Related Information. During Furnish to the Term and, as applicable, the Option Term Administrative Agent and any Renewal Term, for so long as Off-Taker is required to consolidate the financial statements of Provider with the financial statements of Off-Taker as reasonably determined by Off-Taker in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) (such consolidation requirement being referred to hereafter as the “Consolidation”), Provider shall: each Lender:
(a) no later than the beginning of the fifth (5th) business day following as soon as available and in any event within 90 days after the end of each Monthfiscal year of the Borrower, or sooner if availablea copy of the annual audit report for such fiscal year for the Borrower and its Subsidiaries, provide to Off-Taker including therein the preliminary income statement and consolidated balance sheet of Provider the Borrower and its Subsidiaries as at the end of such year and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for such Monthfiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year of the Borrower, accompanied by an unqualified opinion or an opinion otherwise reasonably acceptable to the Required Lenders of BDO Siedxxx xx other independent certified public accountants of nationally recognized standing;
(b) as soon as available and no in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter and the related unaudited consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the period commencing at the end of the fifth (5th) business day following previous fiscal year of the Borrower and ending with the end of such fiscal quarter, setting forth in each Monthcase in comparative form the corresponding figures for the corresponding period in the immediately preceding fiscal year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) of this Section 9.1, provide a certificate of a Responsible Officer (i) stating that the consolidated financial statements of the Borrower and its Subsidiaries delivered with such certificate (A) fairly present in all material respects the consolidated financial condition of the Borrower and its Subsidiaries as of the last day of the applicable fiscal quarter or fiscal year, as the case may be, and the consolidated results of operations and cash flow of the Borrower and its Subsidiaries for the applicable fiscal quarter or fiscal year, and (B) subject, in the case of financial statements delivered pursuant to Off-Taker an updated income statement Section 9.1(b), to the requirements for footnotes and balance sheet normal end of Provider for such monthyear audit adjustments, each have been prepared in accordance with U.S. GAAP (or a reconciliation statement has been delivered together therewith conforming such consolidated financial statements to GAAP), consistently applied; (b) promptly provide Off-Taker with an updated income statement and balance sheet if any changes are made, as applicable, to such income statement or balance sheet of Provider following the end of such Month; (cii) no later than fifteen Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof, the period of time such Default or Event of Default has existed and been continuing and the action that the Borrower has taken and/or proposes to take with respect thereto, (15iii) business setting forth a schedule of the computations used by the Borrower in determining compliance with the covenants contained in Section 10.1, 10.4(f), 10.6(c), 10.6(d), 10.7(d) and 10.7(h) and demonstrating the pro forma availability under Section 10.6(c) and 10.6(d) and (iv) comparing actual financial results to projected performance for such period, with a detailed discussion of any variances;
(d) as soon as available and in any event within 15 days following the end of each calendar quarter transpiring during month, a Borrowing Base Certificate showing the Term Borrowing Base as of the last day of such month, certified as complete and Option Term during which Consolidation is required, provide to Off-Taker financial information for such quarter, including correct by a final balance sheet and the related statement of income and cash flows, each prepared in accordance with U.S. GAAP, consistently applied; (d) no later than one hundred and twenty (120) days following the end of each fiscal year, provide to Off-Taker audited financial statements and footnotes of Provider, including a balance sheet and the related statements of income and cash flows, each prepared in accordance with U.S. GAAP, consistently applied, and reported on by an independent registered public accounting firm; Responsible Officer;
(e) promptly after receipt as soon as available and in any event not later than 30 days prior to July 1 and January 1 of each year, projections prepared by management of the Borrower of the consolidated balance sheets and consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries on a request from Offquarterly basis for the next 12-Takermonth period, provide Off-Taker with such projections to be prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represent, at the time of delivery, the Borrower's best estimate of its future financial or other information as Off-Taker may reasonably request in order to enable Off-Taker to complete the Consolidation; performance;
(f) promptly after receipt of a request from Off-Taker, provide Off-Taker with such financial or other information as Off-Taker may reasonably request soon as available and in connection with Off-Taker’s quarterly and annual planning process, including annual business plan information no any event not later than seventy five the first day of each calendar quarter, (75i) calendar days prior a summary, in form and substance reasonably satisfactory to end the Administrative Agent, as to the Borrower and its Subsidiaries which are Loan Parties, of all construction in progress, land development activity and operations of all residential projects owned, wherever located, (ii) a land inventory analysis report, in form and substance reasonably satisfactory to the prior year; Administrative Agent, showing, as to the Borrower and each of its Subsidiaries which is a Loan Party, inventory of sold but unclosed Housing Units together with a schedule indicating (1) project name, (2) location, (3) number of lots/units, (4) closed lots/units, (5) remaining lots/units, (6) lots/units completed or under construction (segregated by sold, spec and model lots/units), (7) lots/units sold but not started, (8) lots/units under contract and (9) lots/units not sold and not under construction and (iii) a report of quarterly sales, on a homebuilding divisional basis, in form and substance reasonably satisfactory to the Administrative Agent;
(g) promptly upon receipt thereof, copies of all "management letters" submitted to the Parent or any of its Subsidiaries by any independent public accountants of the Parent or any of its Subsidiaries in connection with each annual audit of its financial statements made by such accountants;
(h) promptly and in any event within five Business Days after receipt the sending or filing thereof, copies of a request from Off-Takerall proxy statements, provide Off-Taker with such financial statements, change reports and other reports that the Parent or other any of its Subsidiaries sends to its stockholders, partners or members (or equivalent persons thereto), and copies of all regular, periodic and special reports and information as Off-Taker may reasonably request in order to enable Off-Taker to prepare forms, and all registration statements, prospectuses and information memoranda, that the reports which Off-Taker is obligated to file Parent or any of its Subsidiaries files with the Securities and Exchange Commission; (h) allow Off-Taker Commission or any Governmental Authority that may be substituted therefor, or with any national or international securities exchange, and its employees and designated agents, at copies of all reasonable times during normal business hours, private placement or offering memoranda pursuant to audit, examine and make copies or extracts from the books of account records, files and bank statements of Provider as Off-Taker may reasonably request in order to enable it to complete the Consolidation and, to the extent necessary for Off-Taker to meet its requirements under Section 404 which securities of the Xxxxxxxx-Xxxxx Act Parent or any of 2002 (and any similar subsequent regulatory requirements), to assess the internal controls over financial reporting of Provider. The books and records of Provider shall be subject to retention policies its Subsidiaries that are reviewed exempt from registration under the Securities Act are proposed to be issued and approved by Off-Taker. The financial information described in clauses (a), (b) and (c) above shall be accompanied by a certification signed by the Principal Accounting Officer of Provider stating that:sold;
(i) To promptly and in any event within three Business Days after the best furnishing or receipt thereof, copies of such officer’s knowledge and belief, the financial information fairly presents, in all material respects, the financial condition, results of operations and, in the case any statement or report furnished to or received from any other holder of the financial information provided securities of the Parent or any of its Subsidiaries pursuant to the terms of any indenture, loan or credit agreement, receivables purchase agreement or similar agreement of the Parent or any of its Subsidiaries with amounts outstanding or having commitments to extend credit in an aggregate principal amount of at least $1,000,000 (including, without limitation, any amendments, waivers or consents given or requested in respect thereof and any notices of default, acceleration or redemption delivered thereunder) and not otherwise required to be furnished to the Administrative Agent and the Lenders pursuant to any other clause (c), cash flows of Provider as of and for the period presented in the reportthis Section 9;
(iij) Such officer is responsible for establishing and maintaining disclosure controls and procedures and internal control over financial reporting for Provider and has: (y) designed such disclosure controls and procedures to ensure that Material Information relating to Provider is made known to such officer by others within the entity, particularly during the period month of November in each calendar year, a report of a reputable insurance broker summarizing the insurance coverage in effect for which the report is being prepared; Parent and (z) designed each of its Subsidiaries, specifying therein the type, carrier, amount, deductibles and co-insurance requirements and expiration dates thereof and containing such internal controls over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial additional information in accordance with U.S. GAAP;
(iii) For the purposes of Off-Taker’s assessment as any of the materiality of misstatements in Off-Taker’s financial statements pursuant to SEC Staff Accounting Bulletin No. 99Lenders, all Material information has been provided to Off-Taker regarding all known unadjusted misstatements of financial data that has been submitted to Off-Taker. As used in this provisionthrough the Administrative Agent, the term “Material” shall mean any amount over $500,000;
(iv) Any significant deficiencies in the design or operation of internal controls that could adversely affect Provider’s ability to record, process, summarize and report financial data of which such officer is aware have been made know to Off-Takermay reasonably request; and
(vk) Any fraudpromptly, whether such additional financial and other information respecting the Parent or not material, that involves management or other employees who have a significant role in Provider’s internal controls any of which such officer is aware has been made known its Subsidiaries as any Lender through the Administrative Agent may from time to the Off-Takertime reasonably request.
Appears in 1 contract
Financial Statements and Related Information. During Furnish to the Term and, as applicable, the Option Term Administrative Agent and any Renewal Term, for so long as Off-Taker is required to consolidate the financial statements of Provider with the financial statements of Off-Taker as reasonably determined by Off-Taker in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) (such consolidation requirement being referred to hereafter as the “Consolidation”), Provider shall: each Lender:
(a) no later than the beginning of the fifth (5th) business day following as soon as available and in any event within 90 days after the end of each Monthfiscal year of the Borrower, or sooner if availablea copy of the annual audit report for such fiscal year for the Borrower and its Subsidiaries, provide to Off-Taker including therein the preliminary income statement and consolidated balance sheet of Provider the Borrower and its Subsidiaries as at the end of such year and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for such Monthfiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year of the Borrower, accompanied by an unqualified opinion or an opinion otherwise reasonably acceptable to the Required Lenders of BDO Siedxxx xx other independent certified public accountants of nationally recognized standing;
(b) as soon as available and no in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter and the related unaudited consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the period commencing at the end of the fifth (5th) business day following previous fiscal year of the Borrower and ending with the end of such fiscal quarter, setting forth in each Monthcase in comparative form the corresponding figures for the corresponding period in the immediately preceding fiscal year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) of this Section 9.1, provide a certificate of a Responsible Officer (i) stating that the consolidated financial statements of the Borrower and its Subsidiaries delivered with such certificate (A) fairly present in all material respects the consolidated financial condition of the Borrower and its Subsidiaries as of the last day of the applicable fiscal quarter or fiscal year, as the case may be, and the consolidated results of operations and cash flow of the Borrower and its Subsidiaries for the applicable fiscal quarter or fiscal year, and (B) subject, in the case of financial statements delivered pursuant to Off-Taker an updated income statement Section 9.1(b), to the requirements for footnotes and balance sheet normal end of Provider for such monthyear audit adjustments, each have been prepared in accordance with U.S. GAAP (or a reconciliation statement has been delivered together therewith conforming such consolidated financial statements to GAAP), consistently applied; (b) promptly provide Off-Taker with an updated income statement and balance sheet if any changes are made, as applicable, to such income statement or balance sheet of Provider following the end of such Month; (cii) no later than fifteen Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof, the period of time such Default or Event of Default has existed and been continuing and the action that the Borrower has taken and/or proposes to take with respect thereto, (15iii) business setting forth a schedule of the computations used by the Borrower in determining compliance with the covenants contained in Section 10.1, 10.4(f), 10.6(c), 10.6(d), 10.7(d) and 10.7(h) and demonstrating the pro forma availability under Section 10.6(c) and 10.6(d) and (iv) comparing actual financial results to projected performance for such period, with a detailed discussion of any variances;
(d) as soon as available and in any event within 15 days following the end of each calendar quarter transpiring during month, a Borrowing Base Certificate showing the Term and Option Term during which Consolidation is required, provide to Off-Taker financial information for such quarter, including a final balance sheet and the related statement of income and cash flows, each prepared in accordance with U.S. GAAP, consistently applied; (d) no later than one hundred and twenty (120) days following the end of each fiscal year, provide to Off-Taker audited financial statements and footnotes of Provider, including a balance sheet and the related statements of income and cash flows, each prepared in accordance with U.S. GAAP, consistently applied, and reported on by an independent registered public accounting firm; (e) promptly after receipt of a request from Off-Taker, provide Off-Taker with such financial or other information Borrowing Base as Off-Taker may reasonably request in order to enable Off-Taker to complete the Consolidation; (f) promptly after receipt of a request from Off-Taker, provide Off-Taker with such financial or other information as Off-Taker may reasonably request in connection with Off-Taker’s quarterly and annual planning process, including annual business plan information no later than seventy five (75) calendar days prior to end of the prior year; (g) promptly after receipt last day of a request from Off-Takersuch month, provide Off-Taker with such financial or other information certified as Off-Taker may reasonably request in order to enable Off-Taker to prepare the reports which Off-Taker is obligated to file with the Securities complete and Exchange Commission; (h) allow Off-Taker and its employees and designated agents, at all reasonable times during normal business hours, to audit, examine and make copies or extracts from the books of account records, files and bank statements of Provider as Off-Taker may reasonably request in order to enable it to complete the Consolidation and, to the extent necessary for Off-Taker to meet its requirements under Section 404 of the Xxxxxxxx-Xxxxx Act of 2002 (and any similar subsequent regulatory requirements), to assess the internal controls over financial reporting of Provider. The books and records of Provider shall be subject to retention policies that are reviewed and approved by Off-Taker. The financial information described in clauses (a), (b) and (c) above shall be accompanied correct by a certification signed by the Principal Accounting Officer of Provider stating that:
(i) To the best of such officer’s knowledge and belief, the financial information fairly presents, in all material respects, the financial condition, results of operations and, in the case of the financial information provided pursuant to clause (c), cash flows of Provider as of and for the period presented in the reportResponsible Officer;
(ii) Such officer is responsible for establishing and maintaining disclosure controls and procedures and internal control over financial reporting for Provider and has: (y) designed such disclosure controls and procedures to ensure that Material Information relating to Provider is made known to such officer by others within the entity, particularly during the period for which the report is being prepared; and (z) designed such internal controls over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial information in accordance with U.S. GAAP;
(iii) For the purposes of Off-Taker’s assessment of the materiality of misstatements in Off-Taker’s financial statements pursuant to SEC Staff Accounting Bulletin No. 99, all Material information has been provided to Off-Taker regarding all known unadjusted misstatements of financial data that has been submitted to Off-Taker. As used in this provision, the term “Material” shall mean any amount over $500,000;
(iv) Any significant deficiencies in the design or operation of internal controls that could adversely affect Provider’s ability to record, process, summarize and report financial data of which such officer is aware have been made know to Off-Taker; and
(v) Any fraud, whether or not material, that involves management or other employees who have a significant role in Provider’s internal controls of which such officer is aware has been made known to the Off-Taker.
Appears in 1 contract
