Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following: (a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a consolidated balance sheet of the Borrower and the Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of recognized standing selected by the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants); (b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a consolidated balance sheet of the Borrower and the Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower; (c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter; (d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; (e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require; (f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year; (g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR; (h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower; (i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement; (j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist; (k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto; (l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect; (m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require; (n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary. (o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Lennar Corp), Credit Agreement (LNR Property Corp)
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles consistently applied, and provide furnish or cause to be furnished to the Lenders Bank copies of each of the following:
a. Within ninety (a90) as soon as available and in any event within 120 days after the end of each its fiscal year of the Borrower year, (commencing with the fiscal year ending November 30, 1997), a i) an annual consolidated balance sheet financial statement of the Borrower and the Subsidiaries as of the end of that fiscal year its Subsidiaries, and the related consolidated statements of earningsincome, partnersshareholders' equity equity, and cash flows changes in position for that such fiscal year, all with accompanying notes notes, in reasonable detail and schedulesstating in comparative form the figures as of the end of and for the previous fiscal year, prepared in accordance with GAAP consistently applied and audited and reported upon without scope limitations by Deloitte & Touche or another firm of an independent certified public accountants of recognized standing selected by the Borrower and acceptable to the Agent Bank (such the foregoing shall have been certified pursuant to an audit report shall be unqualified except for qualifications relating to as presenting fairly the financial position of the Borrower and its Subsidiaries, and the results of operations and changes in financial position for the fiscal year, without qualification, in conformity with GAAP and required consistently applied together with a copy of the management letter or approved by a statement that none was issued); provided, however, that the delivery of the Borrower's independent certified public accountants);
Form 10-K for that fiscal year shall satisfy this requirement, so long as the financial statement was prepared by either Axxxxx Axxxxxxx or by an accounting firm reasonably satisfactory to the Bank; (bii) a compliance certificate executed by the Chief Financial Officer certifying that as soon as available and in any event within 60 days after the end of each of the first three quartersdate thereof the Borrower is in compliance in all material respects with the terms hereof and itemizing the computations performed to test such compliance as to Sections 6.1 or 6.8 or Article 6A hereof, in sufficient detail (including the aggregate amount of all sales required to be considered in determining if any amounts are required to be paid under Section 6.1 hereof) to permit the Bank to relate the items involved in the computation to the figures shown on the financial statements; and within (iii) a copy of accountants' management letter or statement that none was prepared.
b. Within 120 days after the end of its fiscal year, a consolidating financial statement of the fourth quarterBorrower and its Subsidiaries, which may be unaudited.
c. Within forty-five (45) days of the end of each fiscal year of the Borrower quarter, (commencing with the quarter i) a detailed profit and Fiscal Year ending November 30, 1997), a consolidated loss statement and balance sheet of the Borrower and its Subsidiaries, each of which may be compiled by the Subsidiaries as Borrower, and need not be audited or reviewed by an independent accountant (each of the end of foregoing must reflect GAAP, applied consistently with the annual financial statements); provided, however, that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer delivery of the Borrower;
's Form 10-Q for the fiscal quarter then ending shall satisfy this requirement; (cii) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, a compliance certificate executed by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) certifying that as of the end of that quarter and the related consolidated statement of earnings of date thereof, the Borrower is in compliance in all material respects with the terms hereof and itemizing the computations performed to test such compliance as to Sections 6.1 or 6.8 or Article 6A hereof in sufficient detail (including the aggregate amount of all sales required to be considered in a form acceptable determining if any amounts are required to be paid under Section 6.1 hereof) to permit the Bank to relate the items involved in the computation to the Agent) for figures shown on the period from the beginning of the fiscal year to the end of that quarter financial statements; and (iiiii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed certification by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower as to the effect thatcompliance with Section 5.5(c) hereof.
d. Promptly upon becoming available, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(ebut no later than ninety (90) within 60 days after the end of each Borrowers fiscal quarter year in the case of the delivery of Form 10-K and within 120 forty-five (45) days after the end of each Borrower's fiscal year quarter in the case of the Borrower (commencing with the fiscal year ending November 30, 1997delivery of Form 10-Q), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, and notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar the Borrower and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory which does not relate to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) 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, but the foregoing statement shall be required only if or disclose any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving material adverse effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer affairs of the Borrower.
e. Promptly, from time to time, such other information regarding the operation, business affairs and financial condition of the Borrower and the Subsidiaries as the Bank may reasonably request.
Appears in 1 contract
Accounts and Reports. Maintain The Company will, and will cause any of its subsidiaries to, maintain a standard system of accounting established and administered accounts in accordance with GAAPgenerally accepted accounting principles consistently applied, and provide the Company will, and will cause each of its subsidiaries to, keep full and complete financial records. The Company will furnish to each Investor who then owns at least 750,000 shares (as appropriately adjusted for stock splits, stock dividends and the Lenders like) of the following:Registrable Securities (a “Major Investor”) the information set forth in this Section 2.2.1(a):
(ai) as soon as available and in any event within 120 Within ninety (90) days after the end of each fiscal year year, a copy of the Borrower (commencing with the fiscal year ending November 30, 1997), a consolidated and consolidating balance sheet of the Borrower Company and its subsidiaries as at the Subsidiaries end of such year, together with consolidated and consolidating statements of income, stockholders’ equity and cash flows of the Company and its subsidiaries for such year, which shall be prepared in accordance with generally accepted accounting principles (“GAAP”) setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all in reasonable detail and duly certified by independent public accountants of national recognition selected by the Board of Directors of the Company;
(ii) Within sixty (60) days after the end of each calendar quarter, a preliminary consolidated and consolidating balance sheet of the Company and its subsidiaries as of the end of that such quarter and preliminary consolidated and consolidating statements of income, stockholders’ equity and cash flow for such quarter and for the period commencing at the end of the previous fiscal year and ending with the related consolidated statements end of earningssuch quarter, partners' equity which shall be prepared in accordance with GAAP setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and cash flows for that compared to budget, all in reasonable detail;
(iii) At least thirty (30) days prior to the end of each fiscal year, a copy of the operating plan and budget for the next fiscal year, in form consistent with good business practice, and as soon as prepared, any other budgets or revised budgets prepared by the Company, unless such requirements are waived by the Investor;
(iv) Promptly upon receipt thereof, any written report, so called “management letter,” and any other communication submitted to the Company or any subsidiary by its independent public accountants relating to the business, prospects or financial condition of the Company and its subsidiaries;
(v) Promptly after the commencement thereof, notice of (i) all with accompanying notes actions, suits and schedulesproceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Company (or any subsidiary) which, if successful, would represent a Material Adverse Change as defined in the Series B Agreement and (ii) all material defaults by the Company or any subsidiary (whether or not declared) under any agreement for money borrowed (unless waived or cured within applicable grace periods);
(vi) With respect to the financial statements called for in subsections (i) and (ii) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of recognized standing selected by fairly present the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each financial condition of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a consolidated balance sheet of the Borrower and the Subsidiaries Company as of the end dates indicated and its results of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings operations and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accuratespecified, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower;adjustment; and
(cvii) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such Such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course financial condition, business, prospects or corporate affairs of the business of Lennar and LNR;
(h) Company as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender Major Investor may from time to time reasonably require;
(n) concurrently with request; provided, however, that the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes Company shall be amended allowed a reasonable time to include the name of process such Subsidiary; (iv) a copy of the certificate of incorporation request and shall not be obligated under this or any other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness provision of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared Section 2.1 to provide information which it deems in accordance with GAAP, unaudited but certified good faith to be true and accurate by the Chief Financial Officer of the Borrowera trade secret or similar confidential information.
Appears in 1 contract
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a consolidated balance sheet of the Borrower Company and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partnersstockholders' equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of recognized standing selected by the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a consolidated balance sheet of the Borrower Company and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower Company and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the BorrowerCompany;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), (i) a consolidating balance sheet of the following described balance sheets Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidating statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter, and (ii) a consolidating balance sheet of the Mortgage Banking Subsidiaries (in a form acceptable to the Agent) as of the end of that quarter and the related consolidating statement of earnings of the Mortgage Banking Subsidiaries (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarterCompany;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower Company to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) within 60 30 days after the end of each fiscal quarter calendar month (commencing with the month ending October 31, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, setting forth, as of the end of the month, with respect to each Project owned by the Company and its Subsidiaries, (i) the number of Housing Unit Closings, (ii) the number of Housing Units either completed or under construction, specifying the number thereof that are Completed Housing Units, (iii) the number of Housing Units Under Contract;
(f) within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(fg) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis basis, of the cash flow and of the earnings of the Borrower Company and the its Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(gh) Promptly promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR the Borrower with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar the Borrower and LNRwhich does not relate to or disclose any Material Adverse Effect;
(hi) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the BorrowerCompany;
(ij) within 60 days after the Closing Date and the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year fiscal year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance compliance, as of the Closing Date and as of the last day of such quarterly or annual period, as the case may be, with the provisions of Article VII and, if the Borrower shall have been required to provide Collateral, Article VIII, of this Agreement. Without limiting the generality of the foregoing, Borrower shall provide to the Lenders (i) a report calculating the Borrowing Base in form and substance satisfactory to Agent, in which report the Borrower shall include a report of all accounts receivable from the sales of Housing Units included in the Borrowing Base, showing all such receivables which remain uncollected on the tenth (10th) day after the Closing Date or end of the quarter or fiscal year, as the case may be, (ii) a report containing the calculations necessary to indicate that the Borrower is in compliance with the provisions of Sections 6.09 and 7.14, including a certification of the outstanding principal amount of all loans and advances made by the Company to each of the Mortgage Banking Subsidiaries, as the case may be, and that all such loans and advances are duly evidenced by the Mortgage Banking Subsidiaries Note in the possession of Agent, and (iii) a report on investments substantially in the form attached as Exhibit E hereto. The reports furnished pursuant to this subsection (j) shall be certified to be true and correct by the Chief Financial Officer of the Company and shall also contain a representation and warranty by the Borrower that it is in full compliance with the provisions of Article VII of this Agreement;
(jk) within 60 days after the Closing Date and the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and fiscal year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating whether the Borrower, as of the Closing Date and as of the last day of such quarterly or annual period, as the case may be, is in compliance with the Minimum Interest Coverage Ratio;
(l) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(km) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(ln) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against 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 Hazardous Substance into the environment, and (b) any notice alleging any violation of any Environmental Law law or any federal, state or local health or safety law or regulation by the Borrower Company or any of the its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(mo) promptly upon the request of the Agent or any Lender, an accurate legal description with respect to any Real Estate included in the calculation of the Borrowing Base;
(p) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(nq) prior to or contemporaneously with the making of any investment in any Joint Venture, copies of each proposed shareholders' agreement, certificate or articles of incorporation, partnership agreement, joint venture agreement or similar organizational instrument or agreement, relating to the formation of each Joint Venture, and each material restatement, modification, amendment or supplement thereto;
(r) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor Borrower under Section 6.07 hereof was formed, the Borrower Company shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary GuarantorSubsidiary, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 4.14 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor Borrower hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.;
(os) concurrently with the consolidated balance sheet delivered pursuant to subsection (s) above, a copy of Schedule III (Real Estate Owned), updated from Schedule III most recently delivered to the Lenders, including therein all real estate owned by the Company and its Subsidiaries, including Greystone and its Subsidiaries, immediately following the Merger and after giving effect to the Reorganization; and
(t) within 60 days of the Closing Date, a Closing Date consolidated balance sheet of the BorrowerCompany and its Subsidiaries (including Greystone and its Subsidiaries), as of such date and after giving effect to the formation of the BorrowerLLP, the transfer of assets by LLP Partner to transactions contemplated under the Borrower pursuant to Spin-Off Agreement, the Reorganization and Merger, the effectiveness of this Agreement, the Facility B Credit Agreement and the Lennar LLP Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAPGAAP consistently applied, unaudited but certified to be true and accurate by the Chief Financial Officer of the BorrowerCompany.
Appears in 1 contract
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30December 31, 19971996), a combined (prior to the Merger) and consolidated (after the Merger) and consolidating balance sheet sheets of the Borrower Obligated Group and the its Subsidiaries as of the end of that fiscal year and the related consolidated and consolidating statements of earnings, partnersstockholders' equity and cash flows for that fiscal year, all with accompanying notes and schedules, setting forth, in each case, in comparative form, the corresponding figures for the preceding year, all in reasonable detail and prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche KPMG Peat Marwick LLP or another national firm of independent certified public accountants of recognized standing selected by the Borrower and reasonably acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);
(b) Prior to the Merger, as soon as available and in any event within 60 30 days after the end of each month of the first three quarters, and within 120 days after the end of the fourth quarter, of each Borrower's fiscal year of the Borrower (commencing with the quarter and Fiscal Year month ending November 30October 31, 19971996), a consolidated combined balance sheet sheets of the Borrower Obligated Group and its Subsidiaries, the Subsidiaries related combined statement of stockholders' equity of the Obligated Group and its Subsidiaries, as of the end of that quartermonth, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to the end of that quartermonth, setting forth, in each case, in comparative form, the corresponding figures for the preceding year, all in reasonable detail and prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer chief financial officer of each member of the BorrowerObligated Group;
(c) as soon as available and in any event within 60 days after the end of each quarter of the first three quarters, and within 120 days after the end of the fourth quarter, of each Borrower's fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November September 30, 19971996), combined (and after the following described Merger, consolidated) balance sheets of the Obligated Group and its Subsidiaries, the related combined (and after the Merger, consolidating) statement of stockholders' equity of the Obligated Group and its Subsidiaries, as of the end of that quarter, and the related consolidating statements of earnings and cash flows of the Obligated Group and its Subsidiaries for that quarter and for the period from the beginning of the fiscal year to the end of 61 that quarter, setting forth, in each case, in comparative form, the corresponding figures for the preceding year, all in reasonable detail and prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer chief financial officer of each member of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarterObligated Group;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of each member of the Borrower Obligated Group to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) as soon as available and in any event within 30 days after the end of each calendar month of Borrower's fiscal year (commencing with the month ending November 30, 1996), a monthly sales report of all activity during the preceding calendar month, in the form presently provided to Lenders in connection with the Existing Loans, or as otherwise reasonably required by Agent;
(f) as soon as available and in any event within 60 days after the end of each calendar quarter of Borrower's fiscal year (commencing with the calendar quarter ending September 30, 1996) a schedule of all Real Estate, Lots and Residential Units owned by the Borrower by Project;
(g) within 120 60 days after the end of prior to each fiscal year of the Borrower (commencing with the fiscal year ending November 30beginning January 1, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f1998) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries Obligated Group for that fiscal year and for the immediately succeeding such fiscal year, together with gross and net margin analysis of each Project by quarter;
(gh) Promptly as soon as available and in any event within 60 days after the end of each quarter of Borrower's fiscal year (commencing with the quarter ending March 31, 1997), a copy of the Obligated Group's quarterly report on Form 10-Q filed with the Securities and Exchange Commission;
(i) as soon as available and in any event within 120 days after the end of Borrower's fiscal year (commencing with the fiscal year ending December 31, 1996), a copy of the Obligated Group's annual report on Form 10-K filed with the Securities Exchange Commission;
(j) within forty-eight (48) hours after filing with the Securities Exchange Commission, a copy of any report filed on Form 8K; 62
(k) except as otherwise provided in subsections (h), (i) and (j) above, promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR any number of the Obligated Group to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR any number of the Obligated Group with any securities exchange or any governmental authority or commissionGovernmental Authority, except material filed with governmental authorities or commissions Governmental Authorities relating to the development of Real Estate Lots and Residential Units in the ordinary course of the business of Lennar the Borrower and LNR;
(h) as soon as available and in which does not disclose any event within 60 days after Material Adverse Effect on the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer affairs of the Borrower;
(il) within 60 On or before fifteen (15) days after the end of each filing, a copy of the first three quartersObligated Group's annual federal corporate income tax return, and within 90 days after the end of each fiscal year and, if such federal corporate income tax return is not filed on or before April 15, then, on or before May 1, a copy of the Borrower (commencing with the quarter and Fiscal Year ending November 30Request for Extension Form, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;as filed.
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(km) as soon as possible and in any event within 10 ten (10) days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which that the Borrower proposes to take with respect thereto;
(ln) as soon as possible and in any event within 10 ten (10) days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against 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 Environmental Law or any federal, state or local environmental, health or safety law or regulation by any member of the Borrower Obligated Group or any of the its Subsidiaries, whichthat, in either case, could reasonably be expected to have a Material Adverse Effect;
(mo) promptly upon the request of the Agent or any Lender, an accurate legal description of any Real Estate of Lots included under a Guidance Loan or any Units included in the calculation of the Collateral Base;
(p) such supplements to the aforementioned documents and additional information (including, but not limited towithout limitation, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles consistently applied, and provide furnish or cause to be furnished to the Lenders Bank copies of each of the following:
a. Within ninety (a90) as soon as available and in any event within 120 days after the end of each its fiscal year of the Borrower year, (commencing with the fiscal year ending November 30, 1997), a i) an annual consolidated balance sheet financial statement of the Borrower and the Subsidiaries as of the end of that fiscal year its Subsidiaries, and the related consolidated statements of earningsincome, partnersshareholders' equity equity, and cash flows changes in position for that such fiscal year, all with accompanying notes notes, in reasonable detail and schedulesstating in comparative form the figures as of the end of and for the previous fiscal year, prepared in accordance with GAAP consistently applied and audited and reported upon without scope limitations by Deloitte & Touche or another firm of an independent certified public accountants of recognized standing selected by the Borrower and acceptable to the Agent Bank (such the foregoing shall have been certified pursuant to an audit report shall be unqualified except for qualifications relating to as presenting fairly the financial position of the Borrower and its Subsidiaries, and the results of operations and changes in financial position for the fiscal year, without qualification, in conformity with GAAP and required consistently applied together with a copy of the management letter or approved by a statement that none was issued); provided, however, that the delivery of the Borrower's independent certified public accountants);
Form 10-K for that fiscal year shall satisfy this requirement, so long as the financial statement was prepared by either Axxxxx Axxxxxxx or by an accounting firm reasonably satisfactory to the Bank; (bii) a compliance certificate executed by the Chief Financial Officer certifying that as soon as available and in any event within 60 days after the end of each of the first three quartersdate thereof the Borrower is in compliance in all material respects with the terms hereof and itemizing the computations performed to test such compliance as to Sections 6.1 or 6.8 or Article 6A hereof, in sufficient detail (including the aggregate amount of previous sales required to be included in calculation of amounts due under Section 6.1 hereof) to permit the Bank to relate the items involved in the computation to the figures shown on the financial statements; and within (iii) a copy of accountants' management letter or statement that none was prepared.
b. Within 120 days after the end of its fiscal year, a consolidating financial statement of the fourth quarterBorrower and its Subsidiaries, which may be unaudited.
c. Within forty-five (45) days of the end of each fiscal year of the Borrower quarter, (commencing with the quarter i) a detailed profit and Fiscal Year ending November 30, 1997), a consolidated loss statement and balance sheet of the Borrower and its Subsidiaries, each of which may be compiled by the Subsidiaries as Borrower, and need not be audited or reviewed by an independent accountant (each of the end of foregoing must reflect GAAP, applied consistently with the annual financial statements); provided, however, that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer delivery of the Borrower;
's Form 10-Q for the fiscal quarter then ending shall satisfy this requirement; (cii) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, a compliance certificate executed by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) certifying that as of the end of that quarter and the related consolidated statement of earnings of date thereof, the Borrower is in compliance in all material respects with the terms hereof and itemizing the computations performed to test such compliance as to Sections 6.1 or 6.8 or Article 6A hereof in sufficient detail (including the aggregate amount of previous sales required to be included in a form acceptable calculation of amounts due under Section 6.1 hereof) to permit the Bank to relate the items involved in the computation to the Agent) for figures shown on the period from the beginning of the fiscal year to the end of that quarter financial statements; and (iiiii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed certification by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower as to the effect thatcompliance with Section 5.5(c) hereof.
d. Promptly upon becoming available, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(ebut no later than ninety (90) within 60 days after the end of each Borrowers fiscal quarter year in the case of the delivery of Form 10-K and within 120 forty-five (45) days after the end of each Borrower's fiscal year quarter in the case of the Borrower (commencing with the fiscal year ending November 30, 1997delivery of Form 10-Q), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, and notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar the Borrower and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory which does not relate to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) 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, but the foregoing statement shall be required only if or disclose any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving material adverse effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer affairs of the Borrower.
e. Promptly, from time to time, such other information regarding the operation, business affairs and financial condition of the Borrower and the Subsidiaries as the Bank may reasonably request.
Appears in 1 contract
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972004), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' stockholders’ equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Administrative Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's ’s independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30May 31, 19972004), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief an Authorized Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30May 31, 19972004), (i) a consolidating balance sheet of the following described balance sheets Loan Parties (in a form acceptable to the Administrative Agent) as of the end of that quarter and the related consolidating statement of earnings of the Loan Parties (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, and (ii) a consolidating balance sheet of the Mortgage Banking Subsidiaries (in a form acceptable to the Administrative Agent) as of the end of that quarter and the related consolidating statement of earnings of the Mortgage Banking Subsidiaries (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief an Authorized Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) intentionally omitted;
(e) intentionally omitted;
(f) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and Table of Contents concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief an Authorized Financial Officer of the Borrower to the effect that, that having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(eg) within 60 30 days after the end of each quarter of each fiscal year of Borrower (commencing with the quarter ending May 31, 2004), a report, in reasonable detail and in form and substance satisfactory to the Administrative Agent, setting forth, as of the end of that quarter, with respect to each Project owned by the Loan Parties, (i) the number of Housing Unit Closings, (ii) the number of Housing Units either completed or under construction, specifying the number thereof that are Completed Housing Units, (iii) the number of Housing Units Under Contract, provided, however, that the foregoing report shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower does not have an Investment Grade Rating from at least one of the three Rating Agencies;
(h) within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972004), a schedule of all Real Estate owned by the Borrower and the Subsidiaries Loan Parties in the form of Schedule III annexed hereto or as otherwise required by Administrative Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Administrative Agent shall require;
(fi) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Administrative Agent, on a quarterly basis basis, of the cash flow and of the earnings of the Borrower and the its Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(gj) Promptly promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amendedamended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR the Borrower with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar the Loan Parties and LNRwhich does not relate to or disclose any Material Adverse Effect;
(hk) as soon as available and in any event within 60 90 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, form furnished by the Chief Financial Officer of the BorrowerJoint Venture;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Accounts and Reports. Maintain The Loan Parties shall maintain a standard system of accounting established and administered in accordance with GAAPGAAP consistently applied, and the Loan Parties shall provide to the Lenders Lender the following:
(a) as soon as available and in any event within 120 45 days after the end of each fiscal year of the Borrower (Borrower, commencing with the fiscal year ending November 30ended December 31, 1997)2002, a consolidated and consolidating balance sheet of the Borrower and the Subsidiaries its subsidiaries as of at the end of that fiscal year and the related consolidated and consolidating statements of earnings, partnersshareholders' equity and cash flows flow for that such fiscal year, all with accompanying notes notes, in reasonable detail and schedules, prepared stating in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of recognized standing selected by comparative form the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);
(b) figures as soon as available and in any event within 60 days after at the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a consolidated balance sheet of the Borrower and the Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the previous fiscal year to the end of that quarteryear, all prepared in accordance with GAAP consistently applied, unaudited but and audited and reported upon by Ernst & Young or other independent certified to be true and accurate, subject to normal year-end audit adjustments, public accountants of recognized standing regularly retained by the Chief Financial Officer of Borrower to audit its books and approved by the BorrowerLender;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(db) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed the annual auditor's report prepared by that firm of those independent certified public accountants to the effect thataccountants, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (ba) above and (c) abovebelow, a certificate letter to the Lender signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower Borrower's accountants to the effect that, having read this Agreement, (i) the compliance calculations of the Loan Parties delivered under subsection (d)(i) of this Section were correct and based upon an (ii) nothing came to their attention during the course of their regular examination which they deemed sufficient to enable that caused them to make an informed statement, there does not exist believe any Event of Default or Unmatured DefaultDefault had occurred and had not theretofore been reported and remedied, or if any such Event of Default or Unmatured Default has occurredhad occurred and was continuing or was not previously reported, specifying the facts with respect thereto;
(ec) as soon as available, and in any event within 60 15 days after the end of each fiscal quarter and within 120 days after the end month (including December) of each fiscal year of the Borrower (commencing with the fiscal year month ending November 30July 31, 19972002), a schedule of all Real Estate owned by the Borrower consolidated and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings consolidating balance sheet of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, its subsidiaries as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after at the end of each such month and the related consolidated and consolidating statements of the first three quartersearnings, shareholders' equity and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture cash flow for the period from the beginning of the such fiscal year to the end of that quartersuch month, unaudited but certified by the chief executive officer and chief financial officer (or controller or other most senior accounting officer or employee if there is no chief financial officer) of the Borrower as (i) prepared in accordance with GAAP consistently applied, unaudited but certified to be true (ii) fully reflecting all of the Accounts Receivable, trade payables and accurateother liabilities of the Borrower and its subsidiaries, subject and (in the case iii) complete, accurate and a fair presentation of the financial statements delivered condition of the Borrower and its subsidiaries as of such date and the results of operations for the first three quarter of each fiscal year) period covered thereby, subject to normal year-end audit adjustments, and in the case of quarterly statements audited or reviewed by such independent certified public accountants to the Chief Financial Officer of extent deemed necessary by SGRP's auditors in connection with the BorrowerSPAR Group annual audit or quarterly review;
(d) concurrently with the delivery of the documents described in subsection (c), above, (i) within 60 days after a certificate in the form of Exhibit E hereto setting forth the calculations of and establishing compliance with (among other things) the financial covenants set forth in Section 6.01, 6.02, 6.03 and 6.08 of this Agreement for the Computation Period just ended, as well as the calculation of any prepayment required under Section 2.06(f) and 2.06(h) hereof and a bringdown of the Loan Parties' representations and warranties, (ii) a certificate respecting the completeness and accuracy of the attached aging summaries of the consolidated and consolidating receivables and payables of the Borrower and its subsidiaries as at the end of the month just ended, and (iii) a certificate listing any changes in Indebtedness, Credit Support and corresponding information for each Loan Party of the first three quartersSPAR ESOP Term Loan Agreement types required to be scheduled under any of Sections 3.10(a) and 3.10(b) hereof since the delivery of Schedules 3.10(a) and 3.10(b) (as and if previously modified by all supplements thereto delivered to the Lender under this clause) in the same form as Schedules 3.10(a) and 3.10(b) hereto, and within 90 days after the end of in each fiscal year case with such certificate being dated as of the Borrower last day of the relevant reporting period and signed by the chief executive officer and chief financial officer (commencing with or controller or other most senior accounting officer or employee if there is no chief financial officer) of the quarter Loan Parties and Fiscal Year ending November 30, 1997), a report, further certifying each has read this Agreement and made an examination sufficient in reasonable detail and the opinion of the signer(s) to make informed statements in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreementsuch certificate;
(je) as soon as available, and in any event within 270 30 days after prior to the close commencement of each fiscal year, a statement consolidated and consolidating annual budget and projections for the Borrower and its subsidiaries for the forthcoming fiscal year (commencing with respect to the fiscal year beginning January 1, 2003) certified by the chief executive officer and chief financial officer (or controller or other most senior accounting officer or employee if there is no chief financial officer) of the Unfunded Liabilities Loan Parties;
(f) as soon as available, and in any event not more than five Business Days after receipt, a copy of any annual management letter issued by any accountant or auditor to any Loan Party;
(g) on or before each Single Employer Plananniversary of the date of this Agreement, certified an independent insurance broker's certificate stating (i) that the insurance required by Section 5.07 of this Agreement is in full force and effect, (ii) that all premiums under those policies have been paid to the extent due through the date of the certificate, and (iii) the amounts and due dates of premiums due within the following 12-month period; and, as correct soon as received, copies of all insurance policies, endorsements and certificates received from time to time by an actuary enrolled under ERISAany Loan Party;
(h) promptly, and in any event not more than five Business Days, following execution, but without in any way authorizing or approving any such action requiring the foregoing statement consent of the Lender hereunder, copies of all loan, security and other instruments, agreements and documents respecting Indebtedness of any Loan Party in excess of $10,000, individually or in the aggregate, including commitments, lines of credit and other credit availabilities, and of all guaranties and other Credit Support by any Loan Party respecting any Indebtedness or other obligation of any other Person in excess of $10,000, individually or in the aggregate, except those to which the Lender also is a party;
(i) as soon as available, and in any event not more than five Business Days after receipt, a copy of any notice or other communication alleging any nonpayment or other breach or default, or any foreclosure or other action respecting any part of its assets and properties, received respecting any of the Indebtedness of any Loan Party (other than the Obligations), or any demand or other request for payment under any guaranty or other Credit Support by any Loan Party respecting any Indebtedness or other obligation of any other Person, including any received from any Person acting on behalf of the holder or beneficiary thereof, provided that the no Loan Party shall be wait for such copies to become available to give any notice required only under the circumstances by any other provision hereof;
(j) as soon as available, and in any event not more than five Business Days after receipt, a copy of any summons or complaint, or any other notice of any action, suit, investigation or proceeding, involving or affecting any Loan Party where the damages sought exceed, or if any Single Employer Plan shall existunspecified reasonably could exceed, $10,000 individually or in the aggregate;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Planavailable, a statementcopy of any notice or other communication alleging the invalidity, signed non-binding effect or unenforceability of, any error or other defect in, any omission from, or any nonpayment or other breach or default under any ESOP Related Document, Stock Purchase Document, or any Organizational Document of any Loan Party or any Surety, or any note, stock certificate, security, financial asset, investment property, instrument, agreement, account, document or intangible of any Loan Party included in the Collateral, provided that no Loan Party shall wait for such copies to become available to give any notice required under the circumstances by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect theretoany other provision hereof;
(l) as soon as possible available, and in any event within 10 not less than 15 days after receipt prior to adoption, but without in any way authorizing or approving any such action requiring the consent of the Lender hereunder, copies of each proposed modification, waiver, amendment or termination of any of the terms and provisions of any ESOP Related Document, Stock Purchase Document, or any Revolving Credit Document of any Loan Party or any Surety, or any note, stock certificate, security, financial asset, investment property, instrument, agreement, account (other than account writeoffs of $10,000 or less in the aggregate for any customer in any year), document or intangible of the Loan Parties included in the Collateral; SPAR ESOP Term Loan Agreement
(x) xx xxxx xx xxxxxxxxx, xxx xx xxx xxxxx xxx xxxx xxxx 00 xxxx prior to adoption, but without in any way authorizing or approving any such action requiring the consent of the Lender hereunder, copies of each proposed modification, waiver, amendment or termination of any of the terms and provisions of any Organizational Document respecting any Loan Party or any Surety or any agreement between the shareholders of any Loan Party or any Surety; promptly following adoption, copies of each of the foregoing certified as to the accuracy thereof by the BorrowerSecretary of State or the Secretary or similar official of the Loan Parties or Surety, as applicable; and promptly following request, such other supporting documents of the kind specified in Section 4.06 hereof as the Lender from time to time may request;
(n) as soon as possible, and in any event not more than five Business Days after filing, copies of all tax returns, informational statements and reports filed by any Loan Party with the Internal Revenue Service of the United States of America;
(o) promptly upon the request of the Lender, copies of each notice, report, statement or other document or communication, whether periodic or otherwise, concerning the occurrence, existence or correction of any ERISA Event in any respect, any responsive communication on the part of any Loan Party or any of its ERISA Affiliates, or any preliminary or final determination of any Authority in respect thereof, provided that no Loan Party shall wait for such request or copies to become available to give any notice required by any other provision hereof; and
(p) contemporaneously with each submission or filing, a copy of any report, registration statement, proxy statement, financial statement, notice or other document, whether periodic or otherwise: (ai) submitted to the shareholders of any Loan Party in their capacities as shareholders; or (ii) submitted to or filed by any Loan Party with any governmental or self-regulatory Authority involving or affecting (A) any Environmental Claim against Loan Party, (B) the Borrower Obligations, (C) any part of the Collateral or (D) any of the Subsidiariestransactions contemplated in this Agreement or the other Loan Instruments, and (b) provided that no Loan Party shall wait for such copies to become available to give any notice alleging required under the circumstances by any violation other provision of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) Section 5.01 hereof; together with such supplements to any of the aforementioned documents and additional accounts, reports, certificates, statements, documents and information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described may request, each in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver such form and substance as may be acceptable to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such SubsidiaryLender.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Samples: Term Loan, Guaranty and Security Agreement (Spar Group Inc)
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972003), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' stockholders’ equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Administrative Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's ’s independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30May 31, 19972003), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief an Authorized Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30May 31, 19972003), (i) a consolidating balance sheet of the following described balance sheets Loan Parties (in a form acceptable to the Administrative Agent) as of the end of that quarter and the related consolidating statement of earnings of the Loan Parties (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, and (ii) a consolidating balance sheet of the Mortgage Banking Subsidiaries (in a form acceptable to the Administrative Agent) as of the end of that quarter and the related consolidating statement of earnings of the Mortgage Banking Subsidiaries (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Authorized Financial Officer of the Borrower;
(id) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreementintentionally omitted;
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972006), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' stockholders’ equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Administrative Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's ’s independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30August 31, 19972006), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief an Authorized Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections subsection (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief an Authorized Financial Officer of the Borrower to the effect that, that having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(ed) within 60 30 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year quarter ending November 30August 31, 19972006), a schedule report, in reasonable detail and in form and substance satisfactory to the Administrative Agent, setting forth, as of all Real Estate the end of that quarter, with respect to each Project owned by the Loan Parties, (i) the number of Housing Unit Closings, (ii) the number of Housing Units either completed or under construction, specifying the number thereof that are Completed Housing Units, (iii) the number of Housing Units Under Contract, provided, however, that the foregoing report shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower and does not have an Investment Grade Rating from at least one of the three Rating Agencies;
(e) Concurrently with the quarterly financial statements described in subsection (b) above, an updated Schedule VI accurately identifying the Subsidiaries in and Joint Venturers as of the form last day of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the such fiscal year in which they are paid and shall contain all such other information as Agent shall require;quarter.
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Administrative Agent, on a quarterly basis basis, of the cash flow and of the earnings of the Borrower and the its Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amendedamended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR the Borrower with or furnished to any securities exchange or any governmental authority or commission, except material filed with or furnished to governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar the Loan Parties and LNRwhich does not relate to or disclose any Material Adverse Effect; the reports and financial statements filed with or furnished to the Securities and Exchange Commission by the Borrower (and which are available online) shall be deemed to have been provided by the Borrower under this Section 6.04;
(h) as soon as available and in any event within 60 90 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, form furnished by the Chief Financial Officer of the BorrowerJoint Venture;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter ending August 31, 2006 and Fiscal Year fiscal year ending November 30, 19972006), a report, report which (subject to the last sentence of this subsection (i)) shall include the information and calculations provided for in Exhibit H attached hereto and such other condition in reasonable detail and be in form and substance satisfactory to the Administrative Agent, with calculations indicating that the Borrower is in compliance, as of the last day of such quarterly or annual period, as the case may be, with the provisions of Articles VI and VII of this Agreement. Without limiting the generality of the foregoing, (but subject to the last sentence of this subsection (i)) the Borrower shall provide to the Lenders (i) a report calculating the Borrowing Base in form and substance satisfactory to Administrative Agent, provided, however, that the Borrower may, and upon request from the Administrative Agent shall, also deliver such report as of the end of any calendar month, and, (ii) a report containing the calculations necessary to indicate that the Borrower is in compliance with the provisions of Sections 6.09 (if applicable) and 7.14, including (if applicable) a certification of the outstanding principal amount of all loans and advances made by any Loan Party to each of the applicable Mortgage Banking Subsidiaries, as the case may be, and that all such loans and advances are duly evidenced by the Mortgage Banking Subsidiaries Note in the possession of Administrative Agent. The reports furnished pursuant to this subsection (i) shall be certified to be true and correct by an Authorized Financial Officer of the Borrower and shall also contain a representation and warranty by the Borrower that it is in full compliance with the provisions of Article VII and, Article VIII, of this Agreement. Notwithstanding the foregoing, the Borrowing Base report and the report evidencing compliance with Section 7.02(a) shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower does not have an Investment Grade Rating from at least two of the three Rating Agencies, and the reports evidencing compliance with Sections 6.09, 7.08 and 7.15 shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower does not have an Investment Grade Rating from at least one of the three Rating Agencies;
(j) if requested by Administrative agent, within 270 days after the close of each fiscal year, year a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief an Authorized Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the BorrowerBorrower or any of its Subsidiaries, a copy of (ai) any Environmental Claim against 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 Hazardous Substance into the environment, and (bii) any notice alleging any violation of any Environmental Law law or any federal, state or local health or safety law or regulation by the Borrower or any of the its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) promptly upon the request of the Administrative Agent or any Lender, an accurate legal description with respect to any Real Estate included in the calculation of the Borrowing Base;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which there occurred an event described in clause (a), (b) or (c) of Section 6.07 hereof that requires a Subsidiary that is not then a Guarantor to become a Guarantor under Section 6.07 hereof (or at any time that the Borrower may elect to cause any other Subsidiary to be a Guarantor), the Borrower shall deliver to the Administrative Agent (i) a Supplemental Guaranty, substantially in the form provided for in the Guaranty, executed by a duly authorized officer of such Subsidiary; (ii) a copy of the certificate of incorporation or other organizational document of such Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; (iii) a copy of the bylaws of such Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary; and (iv) if requested by the Administrative Agent, an opinion of the Borrower’s counsel in the form provided for in Section 5.01(d), modified to apply to the foregoing documents delivered hereunder; and
(o) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Administrative Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Accounts and Reports. Maintain The Loan Parties shall maintain a standard system of accounting established and administered in accordance with GAAPGAAP consistently applied, and the Loan Parties shall provide to the Lenders Lender the following:
(a) as soon as available and in any event within 120 45 days after the end of each fiscal year of the Borrower (Borrower, commencing with the fiscal year ending November 30ended December 31, 1997)2002, a consolidated and consolidating balance sheet of the Borrower Holdings and the Subsidiaries its subsidiaries as of at the end of that fiscal year and the related consolidated and consolidating statements of earnings, partnersshareholders' equity and cash flows flow for that such fiscal year, all with accompanying notes notes, in reasonable detail and schedules, prepared stating in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of recognized standing selected by comparative form the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);
(b) figures as soon as available and in any event within 60 days after at the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a consolidated balance sheet of the Borrower and the Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the Subsidiaries for the period from the beginning of the previous fiscal year to the end of that quarteryear, all prepared in accordance with GAAP consistently applied, unaudited but and audited and reported upon by Ernst & Young or other independent certified to be true and accurate, subject to normal year-end audit adjustments, public accountants of recognized standing regularly retained by the Chief Financial Officer of Borrower to audit its books and approved by the BorrowerLender;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(db) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed the annual auditor's report prepared by that firm of those independent certified public accountants to the effect thataccountants, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (ba) above and (c) abovebelow, a certificate letter to the Lender signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower Holding's accountants to the effect that, having read this Agreement, (i) the compliance calculations of the Loan Parties delivered under subsection (d)(i) of this Section were correct and based upon an (ii) nothing came to their attention during the course of their regular examination which they deemed sufficient to enable that caused them to make an informed statement, there does not exist believe any Event of Default or Unmatured DefaultDefault had occurred and had not theretofore been reported and remedied, or if any such Event of Default or Unmatured Default has occurredhad occurred and was continuing or was not previously reported, specifying the facts with respect thereto;
(ec) as soon as available, and in any event within 60 15 days after the end of each fiscal quarter and within 120 days after the end month (including December) of each fiscal year of the Borrower (commencing with the fiscal year month ending November 30July 31, 19972002), a schedule consolidated and consolidating balance sheet of all Real Estate owned Holdings and its subsidiaries as at the end of such month and the related consolidated and consolidating statements of earnings, shareholders' equity and cash flow for the period from the beginning of such fiscal year to the end of such month, unaudited but certified by the chief executive officer and chief financial officer (or controller or other most senior accounting officer or employee if there is no chief financial officer) of the Borrower as (i) prepared in accordance with GAAP consistently applied, (ii) fully reflecting all of the Accounts Receivable, trade payables and other liabilities of Holdings and its subsidiaries, and (iii) complete, accurate and a fair presentation of the financial condition of Holdings and its subsidiaries as of such date and the Subsidiaries results of operations for the period covered thereby, subject to normal year-end audit adjustments, and in the case of quarterly statements audited or reviewed by such independent certified public accountants to the extent deemed necessary by SGRP's auditors in connection with the SPAR Group annual audit or quarterly review; SPAR ESOP Revolving Credit Agreement
(d) concurrently with the delivery of the documents described in subsection (c), above, (i) a certificate in the form of Schedule III annexed Exhibit E hereto or setting forth the calculations of and establishing compliance with (among other things) the financial covenants set forth in Section 6.01, 6.02, 6.03 and 6.08 of this Agreement for the Computation Period just ended, as otherwise well as the calculation of any prepayment required under Section 2.06(f) and 2.06(h) hereof and a bringdown of the Loan Parties' representations and warranties, (ii) a certificate respecting the completeness and accuracy of the attached aging summaries of the consolidated and consolidating receivables and payables of Holdings and its subsidiaries as at the end of the month just ended, and (iii) a certificate listing any changes in Indebtedness, Credit Support and corresponding information for each Loan Party of the types required to be scheduled under any of Sections 3.10(a) and 3.10(b) hereof since the delivery of Schedules 3.10(a) and 3.10(b) (as and if previously modified by Agent, which scheduleall supplements thereto delivered to the Lender under this clause) in the same form as Schedules 3.10(a) and 3.10(b) hereto, in addition each case with such certificate being dated as of the last day of the relevant reporting period and signed by the chief executive officer and chief financial officer (or controller or other most senior accounting officer or employee if there is no chief financial officer) of the Loan Parties and further certifying each has read this Agreement and made an examination sufficient in the opinion of the signer(s) to providing all the categories of information specified make informed statements in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall requirecertificate;
(fe) as soon as available, and in any event within 90 5 days after the beginning end of each month (including December) of each fiscal year of the Borrower, a projectionBorrowing Base Certificate in the form of Exhibit D hereto setting forth the Borrowing Base as at the end of such month, provided that the Borrowing Base Certificate may be requested as frequently as the Lender requires, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis each case with such certificate being dated as of the cash flow and last day of the earnings relevant reporting period and signed by the chief executive officer and chief financial officer (or controller or other most senior accounting officer or employee if there is no chief financial officer) of the Borrower Loan Parties and further certifying each has read this Agreement and made an examination sufficient in the Subsidiaries for that fiscal year and for opinion of the immediately succeeding fiscal yearsigner(s) to make informed statements in such certificate;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(hf) as soon as available available, and in any event within 60 30 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year prior to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) within 270 days after the close commencement of each fiscal year, a statement consolidated and consolidating annual budget and projections for Holdings and its subsidiaries for the forthcoming fiscal year (commencing with respect to the fiscal year beginning January 1, 2003) certified by the chief executive officer and chief financial officer (or controller or other most senior accounting officer or employee if there is no chief financial officer) of the Unfunded Liabilities Loan Parties;
(g) as soon as available, and in any event not more than five Business Days after receipt, a copy of any annual management letter issued by any accountant or auditor to any Loan Party;
(h) on or before each Single Employer Plananniversary of the date of this Agreement, certified an independent insurance broker's certificate stating (i) that the insurance required by Section 5.07 of this Agreement is in full force and effect, (ii) that all premiums under those policies have been paid to the extent due through the date of the certificate, and (iii) the amounts and due dates of premiums due within the following 12-month period; and, as correct soon as received, copies of all insurance policies, endorsements and certificates received from time to time by an actuary enrolled under ERISAany Loan Party;
(i) promptly, and in any event not more than five Business Days, following execution, but without in any way authorizing or approving any such action requiring the foregoing statement consent of the Lender hereunder, copies of all loan, security and other instruments, agreements and documents respecting Indebtedness of any Loan Party in excess of $10,000, individually or in the aggregate, including commitments, lines of credit and other credit availabilities, and of all guaranties and other Credit Support by any Loan Party respecting any Indebtedness or other obligation of any other Person in excess of $10,000, individually or in the aggregate, except those to which the Lender also is a party;
(j) as soon as available, and in any event not more than five Business Days after receipt, a copy of any notice or other communication alleging any nonpayment or other breach or default, or any foreclosure or other action respecting any part of its assets and properties, received respecting any of the Indebtedness of any Loan Party (other than the Obligations), or any demand or other request for payment under any guaranty or other Credit Support by any Loan Party respecting any Indebtedness or other obligation of any other Person, including any received from any Person acting on behalf of the holder or beneficiary thereof, provided that the no Loan Party shall be wait for such copies to become available to give any notice required only if under the circumstances by any Single Employer Plan shall existother provision hereof;
(k) as soon as possible available, and in any event within 10 days not more than five Business Days after the Borrower knows that any Reportable Event has occurred with respect to any Planreceipt, a statementcopy of any summons or complaint, signed by or any other notice of any action, suit, investigation or proceeding, involving or affecting any Loan Party where the Chief Financial Officer of damages sought exceed, or if unspecified reasonably could exceed, $10,000 individually or in the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;aggregate; SPAR ESOP Revolving Credit Agreement
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borroweravailable, a copy of (a) any Environmental Claim against notice or other communication alleging the Borrower invalidity, non-binding effect or unenforceability of, any error or other defect in, any omission from, or any nonpayment or other breach or default under any ESOP Related Document, Stock Purchase Document, or any Organizational Document of any Loan Party or any Surety, or any note, stock certificate, security, financial asset, investment property, instrument, agreement, account, document or intangible of any Loan Party included in the SubsidiariesCollateral, and (b) provided that no Loan Party shall wait for such copies to become available to give any notice alleging required under the circumstances by any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effectother provision hereof;
(m) as soon as available, and in any event not less than 15 days prior to adoption, but without in any way authorizing or approving any such action requiring the consent of the Lender hereunder, copies of each proposed modification, waiver, amendment or termination of any of the terms and provisions of any ESOP Related Document, Stock Purchase Document, or any Term Loan Document of any Loan Party or any Surety, or any note, stock certificate, security, financial asset, investment property, instrument, agreement, account (other than account writeoffs of $10,000 or less in the aggregate for any customer in any year), document or intangible of the Loan Parties included in the Collateral;
(n) as soon as available, and in any event not less than 30 days prior to adoption, but without in any way authorizing or approving any such action requiring the consent of the Lender hereunder, copies of each proposed modification, waiver, amendment or termination of any of the terms and provisions of any Organizational Document respecting any Loan Party or any Surety or any agreement between the shareholders of any Loan Party or any Surety; promptly following adoption, copies of each of the foregoing certified as to the accuracy thereof by the Secretary of State or the Secretary or similar official of the Loan Parties or Surety, as applicable; and promptly following request, such other supporting documents of the kind specified in Section 4.06 hereof as the Lender from time to time may request;
(o) as soon as possible, and in any event not more than five Business Days after filing, copies of all tax returns, informational statements and reports filed by any Loan Party with the Internal Revenue Service of the United States of America;
(p) promptly upon the request of the Lender, copies of each notice, report, statement or other document or communication, whether periodic or otherwise, concerning the occurrence, existence or correction of any ERISA Event in any respect, any responsive communication on the part of any Loan Party or any of its ERISA Affiliates, or any preliminary or final determination of any Authority in respect thereof, provided that no Loan Party shall wait for such request or copies to become available to give any notice required by any other provision hereof; and
(q) contemporaneously with each submission or filing, a copy of any report, registration statement, proxy statement, financial statement, notice or other document, whether periodic or otherwise: (i) submitted to the shareholders of any Loan Party in their capacities as shareholders; or (ii) submitted to or filed by any Loan Party with any governmental or self-regulatory Authority involving or affecting (A) any Loan Party, (B) the Obligations, (C) any part of the Collateral or (D) any of the transactions contemplated in this Agreement or the other Loan Instruments, provided that no Loan Party shall wait for such copies to become available to give any notice required under the circumstances by any other provision of Section 5.01 hereof; together with such supplements to any of the aforementioned documents and additional accounts, reports, certificates, statements, documents and information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described may request, each in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver such form and substance as may be acceptable to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such SubsidiaryLender.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Accounts and Reports. Maintain Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997)Borrower, a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partnersstockholders' equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche KPMG, LLP or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);
(b) as soon as available and in any event within 60 45 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, quarters of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997)Borrower, a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, to the best of his knowledge;
(c) within 60 45 days after the end of each of the first three quarters, and within 120 90 days after the end of the fourth quarter, of each fiscal year of the Borrower Borrower, a consolidating balance sheet of NVR (commencing with in a form acceptable to the Administrative Agent) as of the end of that quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and related consolidating statement of earnings of NVR (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as best of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarterhis knowledge;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they he deemed sufficient to enable them him to make an informed statement, to the best of his knowledge, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projectionprojections, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis Administrative Agent of the cash flow balance sheets and of the statements of earnings and cash flow of the Borrower and the its Subsidiaries for that fiscal year (on a quarterly basis) and for the immediately succeeding fiscal yearyear (on an annual basis);
(gf) Promptly promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amendedamended (the "Securities Act"), and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR the Borrower with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar the Borrower or its Subsidiaries and LNRwhich does not relate to or disclose any Material Adverse Effect;
(hg) as soon as available and in any event within 60 thirty (30) days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that calendar quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year (without regard to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified whether Borrower is then obligated to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing comply with the quarter and Fiscal Year ending November 30, 1997Borrowing Base Limitation), a report, in reasonable detail and which shall be in form and substance satisfactory to the Administrative Agent, calculating the Borrowing Base, with calculations indicating whether, as of the last day of such quarter, the Borrowing Base exceeds Borrowing Base Debt.
(h) within 45 days after the end of each quarter of each fiscal year of the Borrower, a compliance certificate which shall be substantially in the form of Exhibit G hereto and otherwise in form and substance satisfactory to the Administrative Agent, with calculations indicating that the Borrower is in compliance, as of the last day of such quarter or fiscal year, as the case may be, with the provisions of Article VII of this Agreement. Without limiting the generality of the foregoing, the Borrower shall provide to the Lenders a report calculating the Mortgage Banking Borrowing Base in form and substance satisfactory to Administrative Agent containing the calculations necessary to indicate that the Borrower is in compliance with the provisions of Sections 6.09 and 7.15, including a certification of the outstanding principal amount of all loans and advances made to each of the applicable Mortgage Banking Subsidiaries, as the case may be, and that all such loans and advances are duly evidenced by the Mortgage Banking Note in the possession of and pledged to the Administrative Agent. The reports furnished pursuant to this subsection (h) shall be certified to be true and correct by the Chief Financial Officer of the Borrower to the best of his knowledge and shall also contain a representation and warranty by the Borrower that it is in full compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(ji) within 270 days after the close of each fiscal year, year a statement of the Unfunded Liabilities of each existing Single Employer PlanPlan (if and when applicable), certified as correct by an actuary enrolled under ERISA, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(kj) as soon as possible and in any event within 10 ten (10) days after the Borrower knows that any Reportable Event has occurred with respect to any PlanPlan (if and when applicable), a statement, signed by the Chief an Authorized Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(lk) as soon as possible and in any event within 10 ten (10) days after receipt thereof by the BorrowerBorrower or any of its Subsidiaries, a copy of (ai) any Environmental Claim against 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 Hazardous Substance into the environment, and (bii) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(nl) concurrently with the quarterly financial statements described in subsection (b) above or annual financial statements described in subsection (a) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formedformed or acquired, the Borrower shall deliver to the Administrative Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V III to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 5.13 hereof; and if such new Subsidiary is required to become a Guarantor under Section 6.07 hereof, (iiii) a Joinder Agreement, in form and content satisfactory to the Agent, Guaranty executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (ivii) a copy of the certificate or articles of incorporation or other organizational document documents of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (viii) a copy of the bylaws bylaws, partnership agreement, operating agreement or other similar organizational document of such new Subsidiary, certified by the secretary or other appropriate officer officer, partner or partner member of such Subsidiary.; and (iv) if requested by the Administrative Agent, an opinion of the Borrower's counsel in form and substance satisfactory to Administrative Agent, with respect to such Subsidiary and such Guaranty;
(m) concurrently with the quarterly financial statements described in subsection (b) above or annual financial statements described in subsection (a) above following the end of any quarter in which each new Joint Venture was formed or the Borrower or a Subsidiary acquired an interest therein, the Borrower shall deliver to the Administrative Agent a revised copy of Schedule III to this Agreement, adding thereto the information with respect to such new Joint Venture required by Section 5.13 hereof;
(n) if requested by the Administrative Agent, copies of each proposed shareholders' agreement, certificate or articles of incorporation, partnership agreement, joint venture agreement or similar organizational instrument or agreement, relating to each Joint Venture, and required each material restatement, modification, amendment or supplement thereto; and
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect supplements to the formation of aforementioned documents and additional information (including, but not limited to, leasing and non-financial information and reports) as the Borrower, the transfer of assets by LLP Partner Administrative Agent or any Lender may from time to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrowertime reasonably require.
Appears in 1 contract
Samples: Credit Agreement (NVR Inc)
Accounts and Reports. Maintain Pledgor shall maintain a standard system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles consistently applied and provide, and provide at its sole expense, to the Lenders Pledgee the following:
: (a) as soon as available and in any event within 120 90 days after the end of each fiscal year of the Borrower (Pledgor, commencing with the fiscal year ending November 30December 31, 1997)1999, a consolidated balance sheet of the Borrower and the Subsidiaries Pledgor as of at the end of that fiscal year and the related consolidated statements of earnings, partnersshareholders' equity and cash flows flow for that such fiscal year, all with accompanying notes notes, in reasonable detail and schedulesstating in comparative form the figures as at the end of and for the previous fiscal year, prepared in accordance with GAAP generally accepted accounting principles consistently applied applied, and audited and reported upon by Deloitte & Touche or another a firm of independent certified public accountants of recognized standing selected designated by the Borrower and acceptable Pledgee in writing (including, without limitation, Hxxxxx, Xxxxxxx & Mxxxxxx) to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the BorrowerPledgor's independent certified public accountants);
books; (b) as soon as available available, and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, three-month period of each of its fiscal year of the Borrower years (commencing with the quarter and Fiscal Year ending November June 30, 19971999), a consolidated balance sheet of the Borrower and the Subsidiaries Pledgor as of at the end of that quarter, such three-month period and the related consolidated statement statements of partners' and stockholdersearnings, shareholders' equity earnings and cash flows of flow for such period, all with accompanying notes, in reasonable detail and stating in comparative form the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to figures as at the end of that quarterand for the previous fiscal year's applicable period, all prepared in accordance with GAAP generally accepted accounting principles consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, compiled by the Chief Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants of recognized standing designated by Pledgee in writing (including, without limitation, Hxxxxx, Xxxxxxx & Mxxxxxx) to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect theretoreview Pledgor's books; and concurrently with the delivery of the financial statements described in subsections (b) and (c) aboveas soon as available, a certificate signed by the President copy of any notice or Executive Vice President other communication alleging any nonpayment or other material breach or default, or any foreclosure or other action respecting any material portion of its assets and the Chief Financial Officer properties, received respecting any of the Borrower to indebtedness of Pledgor in excess of $25,000 (other than the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured DefaultObligations), or if such Event any demand or other request for payment under any guaranty, assumption, purchase agreement or similar agreement or arrangement respecting the indebtedness or obligations of Default others in excess of $25,000, including any received from any person acting on behalf of the holder or Unmatured Default has occurred, specifying the facts with respect thereto;
beneficiary thereof; and (ed) within 60 30 days after the end making of each fiscal quarter and within 120 days after submission or filing, a copy of any report, registration statement, proxy statement, financial statement, notice or other document, whether periodic or otherwise, submitted to the end shareholders of each fiscal year Pledgor, or submitted to or filed by Pledgor with any governmental authority involving or affecting (i) any registration of Pledgor or its securities, (ii) Pledgor that could have a Material Adverse Effect, (iii) the Obligations, (iv) any part of the Borrower Pledged Collateral or (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(fv) within 90 days after the beginning of each fiscal year any of the Borrowertransactions contemplated in this Agreement or the Loan Instruments, a projectionincluding, in reasonable detail and in form and substance satisfactory without limitation, those submitted or filed pursuant to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Accounts and Reports. Maintain The Company will, and will cause each of its -------------------- Subsidiaries to, maintain a standard system of accounting established and administered accounts in accordance with generally accepted accounting principles consistently applied ("GAAP") and the Company will, and provide will cause each of its Subsidiaries to, keep full and complete financial records. The Company will furnish to each Holder the Lenders the following:information set forth in this Section 3.1.
(a) as soon as available and in any event Promptly after being filed with the Commission (or, if no filing with the Commission is required, within 120 forty-five (45) days after the end of each fiscal year quarter (except the last fiscal quarter of any fiscal year)), copies of the Borrower (commencing with the fiscal year ending November 30, 1997), a unaudited consolidated balance sheet of the Borrower Company and the its Subsidiaries as of the end of that such fiscal year quarter and the related consolidated statements of earningsoperations, partnersshareholders' equity and cash flows for such fiscal quarter and for that portion of the fiscal year ending as of the end of such fiscal quarter, setting forth in comparative form in each case the consolidated and consolidating budgeted figures for the corresponding periods and the consolidated and consolidating actual figures for the corresponding periods in the preceding fiscal year. To the extent that the Company's Form 10-Q filed with the Commission satisfies the foregoing requirements, the Company may deliver to each Holder a copy of the Company's Form 10-Q in lieu of providing such information separately to each Holder.
(b) Promptly after being filed with the Commission (or, if no filing with the Commission is required, within ninety (90) days after the close of each fiscal year), a copy of the annual audited consolidated and consolidating financial statements of the Company and its Subsidiaries consisting of the consolidated and consolidating balance sheets and consolidated and consolidating statements of operations, shareholders' equity and consolidated and consolidating statements of cash flows, setting forth in comparative form in each case the consolidated and consolidating figures for the previous fiscal year, all with accompanying notes and schedules, which financial statements shall be prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm GAAP. To the extent that the Company's Form 10-K filed with the Commission satisfies the foregoing requirements, the Company may deliver to each Holder a copy of independent certified public accountants the Company's filed Form 10-K in lieu of recognized standing selected by the Borrower and acceptable providing such information separately to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's independent certified public accountants);each Holder.
(bc) as soon as available and in any event within 60 Within twenty (20) days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of monthly accounting period in each fiscal year year: (i) unaudited consolidating and consolidated statements of the Borrower (commencing with the quarter and Fiscal Year ending November 30operations, 1997), a consolidated balance sheet of the Borrower and the Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholdersshareholders' equity earnings and cash flows of the Borrower Company and the its Subsidiaries for such monthly period and for the period from the beginning of the fiscal year to the end of that quartersuch month, all prepared in accordance with GAAP consistently applied, and unaudited but certified to be true consolidating and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer consolidated balance sheets of the Borrower;
(c) within 60 days after the end of each of the first three quarters, Corporation and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) its Subsidiaries as of the end of that quarter and the related consolidated statement of earnings of the Borrower (such monthly period, setting forth in a form acceptable each case comparisons to the Agent) for corresponding period in the period from the beginning of the preceding fiscal year to the end of that quarter (all such statements shall be prepared in accordance with GAAP) and (ii) a balance sheet summary of each Subsidiary Guarantor (such monthly financial statements, in a the form acceptable to agreed upon by the Agent) as of the end of that quarter Company and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to Holders, prepared by the Agent) for the period from the beginning of the fiscal year to the end of that quarter;Company's chief financial officer.
(d) concurrently Within one (1) day after filing thereof, copies of all registration statements, proxy statements and all regular, special or periodic reports or other documents which the Company files, or (to the Company's knowledge) any of its officers or directors file with respect to the Company, with the delivery Commission, the National Association of the financial statements described in subsection (a) aboveSecurities Dealers, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that Inc. or with any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;securities exchange.
(e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower At least twenty-four (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto 24) hours or as otherwise required by Agent, which schedule, in addition soon as is reasonably practicable prior to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming availabletransmission or release thereof, copies of all financial statements, reportsproxy statements, notices reports and proxy statements sent by Lennar and LNR any other general written communications which the Company sends to their respective its stockholders, and copies of all regular and periodic reports material press releases and other material public statements made by the Company (including copies or by any third party, of all registration statements and reports under which the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;Company has knowledge).
(hf) At least twenty-four (24) hours, or as soon as available and in reasonably practicable, prior thereto, notice of any event within 60 days after the end of each telephonic or other meetings with equity or high yield analysts or rating agencies that are open to public participation.
(g) A copy of the first three quartersoperating and capital expenditure plan and budget, ("Business Plan") for each fiscal year, when such Business Plan has been approved by the Board of Directors. Such Business Plan shall be submitted to the Board of Directors for approval, and within 120 days after the end discussed at a meeting of the fourth quarterBoard held, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning no later than March 31 of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, covered by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) within 270 days after the close of each fiscal year, a statement of the Unfunded Liabilities of each Single Employer Business Plan, certified as correct by an actuary enrolled under ERISA, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Accounts and Reports. Maintain Pledgor shall maintain a standard system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles consistently applied and provide, and provide at its sole expense, to the Lenders Pledgee the following:
(a) as soon as available and in any event within 120 90 days after the end of each fiscal year of the Borrower (Pledgor, commencing with the fiscal year ending November 30December 31, 1997)2001, a consolidated balance sheet of the Borrower and the Subsidiaries Pledgor as of at the end of that fiscal year and the related consolidated statements of earnings, partnersshareholders' equity and cash flows flow for that such fiscal year, all with accompanying notes notes, in reasonable detail and schedulesstating in comparative form the figures as at the end of and for the previous fiscal year, prepared in accordance with GAAP generally accepted accounting principles consistently applied applied, and audited and reported upon by Deloitte & Touche or another a firm of independent certified public accountants of recognized standing selected designated by the Borrower and acceptable Pledgee in writing (including, without limitation, Deloitte & Touche LLP) to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the BorrowerPledgor's independent certified public accountants)books;
(b) as soon as available available, and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, three-month period of each of its fiscal year of the Borrower years (commencing with the quarter and Fiscal Year ending November June 30, 19972001), a consolidated balance sheet of the Borrower and the Subsidiaries Pledgor as of at the end of that quarter, such three-month period and the related consolidated statement statements of partners' and stockholdersearnings, shareholders' equity earnings and cash flows of flow for such period, all with accompanying notes, in reasonable detail and stating in comparative form the Borrower and the Subsidiaries for the period from the beginning of the fiscal year to figures as at the end of that quarterand for the previous fiscal year's applicable period, all prepared in accordance with GAAP generally accepted accounting principles consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, compiled by the Chief Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants of recognized standing designated by Pledgee in writing (including, without limitation, Deloitte & Touche LLP) to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and review Pledgor's books;
(c) aboveAS SOON AS AVAILABLE, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect thatA COPY OF ANY NOTICE OR OTHER COMMUNICATION ALLEGING ANY NONPAYMENT OR OTHER MATERIAL BREACH OR DEFAULT, having read this AgreementOR ANY FORECLOSURE OR OTHER ACTION RESPECTING ANY MATERIAL PORTION OF ITS ASSETS AND PROPERTIES, and based upon an examination which they deemed sufficient to enable them to make an informed statementRECEIVED RESPECTING ANY OF THE INDEBTEDNESS OF PLEDGOR IN EXCESS OF $25,000 (OTHER THAN THE OBLIGATIONS), there does not exist any Event of Default or Unmatured DefaultOR ANY DEMAND OR OTHER REQUEST FOR PAYMENT UNDER ANY GUARANTY, or if such Event of Default or Unmatured Default has occurredASSUMPTION, specifying the facts with respect thereto;PURCHASE AGREEMENT OR SIMILAR AGREEMENT OR ARRANGEMENT RESPECTING THE INDEBTEDNESS OR OBLIGATIONS OF OTHERS IN EXCESS OF $25,000, INCLUDING ANY RECEIVED FROM ANY PERSON ACTING ON BEHALF OF THE HOLDER OR BENEFICIARY THEREOF; and
(ed) within 60 30 days after the end making of each fiscal quarter and within 120 days after submission or filing, a copy of any report, registration statement, proxy statement, financial statement, notice or other document, whether periodic or otherwise, submitted to the end shareholders of each fiscal year Pledgor, or submitted to or filed by Pledgor with any governmental authority involving or affecting (i) any registration of Pledgor or its securities, (ii) Pledgor that could have a Material Adverse Effect, (iii) the Obligations, (iv) any part of the Borrower Pledged Collateral or (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(fv) within 90 days after the beginning of each fiscal year any of the Borrowertransactions contemplated in this Agreement or the Loan Instruments, a projectionincluding, in reasonable detail and in form and substance satisfactory without limitation, those submitted or filed pursuant to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Accounts and Reports. Maintain Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997)Borrower, a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' stockholders’ equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche KPMG, LLP or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's ’s independent certified public accountants);
(b) as soon as available and in any event within 60 45 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, quarters of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997)Borrower, a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, to the best of his knowledge;
(c) within 60 45 days after the end of each of the first three quarters, and within 120 90 days after the end of the fourth quarter, of each fiscal year of the Borrower Borrower, a consolidating balance sheet of NVR (commencing with in a form acceptable to the Administrative Agent) as of the end of that quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and related consolidating statement of earnings of NVR (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as best of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarterhis knowledge;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they he deemed sufficient to enable them him to make an informed statement, to the best of his knowledge, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projectionprojections, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis Administrative Agent of the cash flow balance sheets and of the statements of earnings and cash flow of the Borrower and the its Subsidiaries for that fiscal year (on a quarterly basis) and for the immediately succeeding fiscal yearyear (on an annual basis);
(gf) Promptly promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amendedamended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR the Borrower with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar the Borrower or its Subsidiaries and LNRwhich does not relate to or disclose any Material Adverse Effect;
(hg) as soon as available and in any event within 60 twenty (20) days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year calendar month (without regard to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified whether Borrower is then obligated to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Financial Officer of the Borrower;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing comply with the quarter and Fiscal Year ending November 30, 1997Borrowing Base Limitation), a report, in reasonable detail and which shall be in form and substance satisfactory to the Administrative Agent, calculating the Borrowing Base, with calculations indicating whether, as of the last day of such month, the Borrowing Base exceeds Borrowing Base Debt.
(h) within 45 days after the end of each quarter of each fiscal year of the Borrower, a compliance certificate which shall be substantially in the form of Exhibit G hereto and otherwise in form and substance satisfactory to the Administrative Agent, with calculations indicating that the Borrower is in compliance, as of the last day of such quarter or fiscal year, as the case may be, with the provisions of Article VII of this Agreement. Without limiting the generality of the foregoing, the Borrower shall provide to the Lenders a report calculating the Mortgage Banking Borrowing Base in form and substance satisfactory to Administrative Agent containing the calculations necessary to indicate that the Borrower is in compliance with the provisions of Sections 6.09 and 7.15, including a certification of the outstanding principal amount of all loans and advances made to each of the applicable Mortgage Banking Subsidiaries, as the case may be, and that all such loans and advances are duly evidenced by the Mortgage Banking Note in the possession of and pledged to the Administrative Agent. The reports furnished pursuant to this subsection (h) shall be certified to be true and correct by the Chief Financial Officer of the Borrower to the best of his knowledge and shall also contain a representation and warranty by the Borrower that it is in full compliance with the provisions of Article VII and, Article VIII, of this Agreement;
(ji) within 270 days after the close of each fiscal year, year a statement of the Unfunded Liabilities of each existing Single Employer PlanPlan (if and when applicable), certified as correct by an actuary enrolled under ERISA, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(kj) as soon as possible and in any event within 10 ten (10) days after the Borrower knows that any Reportable Event has occurred with respect to any PlanPlan (if and when applicable), a statement, signed by the Chief an Authorized Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(lk) as soon as possible and in any event within 10 ten (10) days after receipt thereof by the BorrowerBorrower or any of its Subsidiaries, a copy of (ai) any Environmental Claim against 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 Hazardous Substance into the environment, and (bii) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(nl) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formedformed or acquired, the Borrower shall deliver to the Administrative Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V III to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 5.13 hereof; and if such new Subsidiary is required to become a Guarantor under Section 6.07 hereof, (iiii) a Joinder Agreement, in form and content satisfactory to the Agent, Guaranty executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (ivii) a copy of the certificate or articles of incorporation or other organizational document documents of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (viii) a copy of the bylaws bylaws, partnership agreement, operating agreement or other similar organizational document of such new Subsidiary, certified by the secretary or other appropriate officer officer, partner or partner member of such Subsidiary.; and (iv) if requested by the Administrative Agent, an opinion of the Borrower’s counsel in form and substance satisfactory to Administrative Agent, with respect to such Subsidiary and such Guaranty;
(m) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Joint Venture was formed or the Borrower or a Subsidiary acquired an interest therein, the Borrower shall deliver to the Administrative Agent a revised copy of Schedule III to this Agreement, adding thereto the information with respect to such new Joint Venture required by Section 5.13 hereof;
(n) if requested by the Administrative Agent, copies of each proposed shareholders’ agreement, certificate or articles of incorporation, partnership agreement, joint venture agreement or similar organizational instrument or agreement, relating to each Joint Venture, and required each material restatement, modification, amendment or supplement thereto; and
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect supplements to the formation of aforementioned documents and additional information (including, but not limited to, leasing and non-financial information and reports) as the Borrower, the transfer of assets by LLP Partner Administrative Agent or any Lender may from time to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrowertime reasonably require.
Appears in 1 contract
Samples: Credit Agreement (NVR Inc)
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972005), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' stockholders’ equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Administrative Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's ’s independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30May 31, 19972005), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief an Authorized Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), the following described balance sheets and statement of earnings all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections subsection (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief an Authorized Financial Officer of the Borrower to the effect that, that having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(ed) within 60 30 days after the end of each quarter of each fiscal year of Borrower (commencing with the quarter ending May 31, 2005), a report, in reasonable detail and in form and substance satisfactory to the Administrative Agent, setting forth, as of the end of that quarter, with respect to each Project owned by the Loan Parties, (i) the number of Housing Unit Closings, (ii) the number of Housing Units either completed or under construction, specifying the number thereof that are Completed Housing Units, (iii) the number of Housing Units Under Contract, provided, however, that the foregoing report shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower does not have an Investment Grade Rating from at least one of the three Rating Agencies;
(e) within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972005), a schedule of all Real Estate owned by the Borrower and the Subsidiaries Loan Parties in the form of Schedule III annexed hereto or as otherwise required by Administrative Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Administrative Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Administrative Agent, on a quarterly basis basis, of the cash flow and of the earnings of the Borrower and the its Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR the Borrower to their respective its stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amendedamended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR the Borrower with or furnished to any securities exchange or any governmental authority or commission, except material filed with or furnished to governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar the Loan Parties and LNRwhich does not relate to or disclose any Material Adverse Effect; the reports and financial statements filed with or furnished to the Securities and Exchange Commission by the Borrower (and which are available online) shall be deemed to have been provided by the Borrower under this Section 6.04;
(h) as soon as available and in any event within 60 90 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, form furnished by the Chief Financial Officer of the BorrowerJoint Venture;
(i) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter ending February 28, 2005 and Fiscal Year fiscal year ending November 30, 19972005), a report, report which (subject to the last sentence of this subsection (i)) shall include the information and calculations provided for in Exhibit H attached hereto and such other condition in reasonable detail and be in form and substance satisfactory to the Administrative Agent, with calculations indicating that the Borrower is in compliance, as of the last day of such quarterly or annual period, as the case may be, with the provisions of Articles VII and VIII of this Agreement. Without limiting the generality of the foregoing, (but subject to the last sentence of this subsection (i)) the Borrower shall provide to the Lenders (i) a report calculating the Borrowing Base in form and substance satisfactory to Administrative Agent, provided, however, that the Borrower may, and upon request from the Administrative Agent shall, also deliver such report as of the end of any calendar month, and, (ii) a report containing the calculations necessary to indicate that the Borrower is in compliance with the provisions of Sections 6.09 (if applicable) and 7.14, including (if applicable) a certification of the outstanding principal amount of all loans and advances made by any Loan Party to each of the applicable Mortgage Banking Subsidiaries, as the case may be, and that all such loans and advances are duly evidenced by the Mortgage Banking Subsidiaries Note in the possession of Administrative Agent. The reports furnished pursuant to this subsection (i) shall be certified to be true and correct by an Authorized Financial Officer of the Borrower and shall also contain a representation and warranty by the Borrower that it is in full compliance with the provisions of Article VII and, Article VIII, of this Agreement. Notwithstanding the foregoing, the Borrowing Base report and the report evidencing compliance with Section 7.02(a) shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower does not have an Investment Grade Rating from at least two of the three Rating Agencies, and the reports evidencing compliance with Sections 6.09, 7.08 and 7.15 shall only be required if, as of the last day of the applicable quarter or fiscal year, the Borrower does not have an Investment Grade Rating from at least one of the three Rating Agencies;
(j) if requested by Administrative agent, within 270 days after the close of each fiscal year, year a statement of the Unfunded Liabilities of each Single Employer Plan, certified as correct by an actuary enrolled under ERISA, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief an Authorized Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the BorrowerBorrower or any of its Subsidiaries, a copy of (ai) any Environmental Claim against 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 Hazardous Substance into the environment, and (bii) any notice alleging any violation of any Environmental Law law or any federal, state or local health or safety law or regulation by the Borrower or any of the its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to promptly upon the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as request of the Administrative Agent or any Lender may from time Lender, an accurate legal description with respect to time reasonably requireany Real Estate included in the calculation of the Borrowing Base;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Administrative Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V VI to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 4.14 hereof, ; (iiiii) a Joinder AgreementSupplemental Guaranty, substantially in the form and content satisfactory to provided for in the AgentGuaranty, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iviii) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (viv) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.; and (v) if requested by the Administrative Agent, an opinion of the Borrower’s counsel in the form provided for in Section 5.01(d), modified to apply to the foregoing documents delivered hereunder; and
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect supplements to the formation of aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Borrower, the transfer of assets by LLP Partner Administrative Agent or any Lender may from time to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrowertime reasonably require.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Accounts and Reports. Maintain a standard system of accounting established and administered in accordance with GAAP, and provide to the Lenders the following:
(a) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 19972002), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that fiscal year and the related consolidated statements of earnings, partners' stockholders’ equity and cash flows for that fiscal year, all with accompanying notes and schedules, prepared in accordance with GAAP consistently applied and audited and reported upon by Deloitte & Touche or another firm of independent certified public accountants of similar recognized standing selected by the Borrower and acceptable to the Administrative Agent (such audit report shall be unqualified except for qualifications relating to changes in GAAP and required or approved by the Borrower's ’s independent certified public accountants);
(b) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30February 28, 19972002), a consolidated balance sheet of the Borrower and the its Subsidiaries as of the end of that quarter, and the related consolidated statement of partners' and stockholders' equity earnings and cash flows of the Borrower and the its Subsidiaries for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief an Authorized Financial Officer of the Borrower;
(c) within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30February 28, 19972002), (i) a consolidating balance sheet of the following described balance sheets Loan Parties (in a form acceptable to the Administrative Agent) as of the end of that quarter and the related consolidating statement of earnings of the Loan Parties (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, and (ii) a consolidating balance sheet of the Mortgage Banking Subsidiaries (in a form acceptable to the Administrative Agent) as of the end of that quarter and the related consolidating statement of earnings of the Mortgage Banking Subsidiaries (in a form acceptable to the Administrative Agent) for the period from the beginning of the fiscal year to the end of that quarter, all prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject to normal year-end audit adjustments, by the Chief Financial Officer of the Borrower, (i) a consolidated balance sheet of the Borrower (in a form acceptable to the Agent) as of the end of that quarter and the related consolidated statement of earnings of the Borrower (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter and (ii) a balance sheet of each Subsidiary Guarantor (in a form acceptable to the Agent) as of the end of that quarter and the related statement of earnings of such Subsidiary Guarantor (in a form acceptable to the Agent) for the period from the beginning of the fiscal year to the end of that quarter;
(d) concurrently with the delivery of the financial statements described in subsection (a) above, a letter signed by that firm of independent certified public accountants to the effect that, during the course of their examination, nothing came to their attention which caused them to believe that any Event of Default or Unmatured Default has occurred, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto; and concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Executive Vice President and the Chief Financial Officer of the Borrower to the effect that, having read this Agreement, and based upon an examination which they deemed sufficient to enable them to make an informed statement, there does not exist any Event of Default or Unmatured Default, or if such Event of Default or Unmatured Default has occurred, specifying the facts with respect thereto;
(e) within 60 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 1997), a schedule of all Real Estate owned by the Borrower and the Subsidiaries in the form of Schedule III annexed hereto or as otherwise required by Agent, which schedule, in addition to providing all the categories of information specified in Schedule III, shall specify those properties the interest and carrying charges attributable to which are being deducted, for financial reporting purposes, for the fiscal year in which they are paid and shall contain all such other information as Agent shall require;
(f) within 90 days after the beginning of each fiscal year of the Borrower, a projection, in reasonable detail and in form and substance satisfactory to the Agent, on a quarterly basis of the cash flow and of the earnings of the Borrower and the Subsidiaries for that fiscal year and for the immediately succeeding fiscal year;
(g) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by Lennar and LNR to their respective stockholders, and of all regular and periodic reports and other material (including copies of all registration statements and reports under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended) filed by Lennar and LNR with any securities exchange or any governmental authority or commission, except material filed with governmental authorities or commissions relating to the development of Real Estate in the ordinary course of the business of Lennar and LNR;
(h) as soon as available and in any event within 60 days after the end of each of the first three quarters, and within 120 days after the end of the fourth quarter, of each fiscal year of each Joint Venture, a balance sheet of that Joint Venture as of the end of that quarter and a statement of earnings of that Joint Venture for the period from the beginning of the fiscal year to the end of that quarter, prepared in accordance with GAAP consistently applied, unaudited but certified to be true and accurate, subject (in the case of the financial statements delivered for the first three quarter of each fiscal year) to normal year-end adjustments, by the Chief Authorized Financial Officer of the Borrower;
(id) within 60 days after the end of each of the first three quarters, and within 90 days after the end of each fiscal year of the Borrower (commencing with the quarter and Fiscal Year ending November 30, 1997), a report, in reasonable detail and in form and substance satisfactory to the Agent, with calculations indicating that the Borrower is in compliance with the provisions of Article VII and, Article VIII, of this Agreementintentionally omitted;
(j) 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, but the foregoing statement shall be required only if any Single Employer Plan shall exist;
(k) as soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the Chief Financial Officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days after receipt thereof by the Borrower, a copy of (a) any Environmental Claim against the Borrower or any of the Subsidiaries, and (b) any notice alleging any violation of any Environmental Law or any federal, state or local health or safety law or regulation by the Borrower or any of the Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(m) such supplements to the aforementioned documents and additional information (including, but not limited to, leasing, occupancy and non-financial information) and reports as the Agent or any Lender may from time to time reasonably require;
(n) concurrently with the quarterly financial statements described in subsection (b) above following the end of any quarter in which each new Subsidiary that is to become a Subsidiary Guarantor under Section 6.07 hereof was formed, the Borrower shall deliver to the Agent (i) revised copies of Schedule I to this Agreement and Schedule I to the Notes, adding thereto the name of such new Subsidiary Guarantor, (ii) a revised copy of Schedule V to this Agreement, adding thereto the information with respect to such new Subsidiary required by Section 4.19 hereof, (iii) a Joinder Agreement, in form and content satisfactory to the Agent, executed by a duly authorized officer of such new Subsidiary, pursuant to which such Subsidiary agrees to become a Subsidiary Guarantor hereunder, assumes all of the Obligations, and agrees that Schedule I hereto and Schedule I to the Notes shall be amended to include the name of such Subsidiary; (iv) a copy of the certificate of incorporation or other organizational document of such new Subsidiary, certified by the secretary of state or other official of the state or other jurisdiction of its incorporation; and (v) a copy of the bylaws of such new Subsidiary, certified by the secretary or other appropriate officer or partner of such Subsidiary.
(o) within 60 days of the Closing Date, a Closing Date balance sheet of the Borrower, as of such date and after giving effect to the formation of the Borrower, the transfer of assets by LLP Partner to the Borrower pursuant to the Reorganization and the effectiveness of this Agreement and the Lennar Credit Agreement and the funding of the initial loans thereunder, prepared in accordance with GAAP, unaudited but certified to be true and accurate by the Chief Financial Officer of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
