Financial and Other Reporting. (a) Borrower shall keep and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, in accordance with GAAP, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property. (b) Borrower shall furnish to Lender (i) annually within one hundred twenty (120) days following the end of each Fiscal Year, (ii) within fifty (50) days following the end of (A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income. (c) Borrower shall furnish to Lender, within fifty (50) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such period. (d) Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect. (e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustments.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Digital Realty Trust, Inc.)
Financial and Other Reporting. (a) Borrower shall will keep and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, in accordance with GAAPGAAP or on a federal income tax basis (or such other accounting basis reasonably acceptable to Lender), proper and accurate books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation Collateral owned by Borrower. Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Collateral owned by Borrower as Lender shall determine to be necessary or appropriate in the protection of Lender’s interest. Borrower shall permit Lender and its authorized agents to inspect from time to time any part of the PropertyCollateral owned by Borrower.
(b) Borrower shall will furnish to Lender (i) annually within one hundred twenty (120) days following the end of each Fiscal Yearby April 10, (ii) within fifty (50) days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction2009, a true, complete, correct and accurate complete copy of Borrower’s, each Guarantor’s, each Pledgor’s and each of their Affiliates’ unaudited consolidated and consolidating annual financial statement statements for such periodthe Fiscal Year ended December 31, 2008 including a statement statements of operations (profit and loss)loss and balance sheets, in each case prepared in accordance with GAAP or on a statement of cash flows, federal income tax basis on a calculation of net operating income, a balance sheet, an aged accounts receivable report consolidated and such other information or reports as shall be requested consolidating basis and certified by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy chief financial officer of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall will furnish to LenderLender a copy of each annual Federal income tax return of Borrower, each Guarantor and each Pledgor within fifty thirty (5030) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such periodfiling thereof.
(d) Borrower shall give prompt written notice will furnish to Lender Lender, within ten (10) Business Days after request, a statement of the administrative expenses incurred by Borrower in any litigation or governmental proceedings pending or threatened involving month and any such further detailed information with respect the financial affairs of Borrower which is as may be reasonably likely to have a Material Adverse Effectrequested by Lender.
(e) Borrower shall furnish to Lender, within ten (10) Business Days days after requestthe end of each month, (i) detailed reports as to the status of any projected sale of Specified Equity Interests, Collateral Entity Properties or Scheduled Property or any refinancing of Indebtedness secured by any Specified Equity Interests, Collateral Entity Properties or Scheduled Property and (ii) an update to Schedule 2.3.2(b) reflecting the addition to such further information with respect Schedule of all other real estate that the Borrower, the Guarantors and their Affiliates thereafter intend to sell at such time.
(f) Borrower and shall furnish to Lender, within two (2) days after the operation consummation of any (i) sale by Borrower, either Guarantor or any of their Affiliates of any Specified Equity Interests, (ii) sale by any Person of any of the Collateral Entity Properties or of any of the Scheduled Property, (iii) refinancing of any Indebtedness of Borrower, either Guarantor or any of their Affiliates secured by any of the Specified Equity Interests, the Collateral Entity Properties or the Scheduled Property or (iv) issuance by Borrower, Lightstone or any of their Affiliance of any Indebtedness or equity securities in a private or public offering, a description of such sale, refinancing or issuance and an accounting of the distribution of all Net Cash Proceeds thereof including without limitation, the amount of such Net Cash Proceeds (if any) required to be deposited to the Blocked Account, in form, substance and detail satisfactory to Lender.
(g) Borrower shall furnish to Lender, within forty-five (45) days of each calendar quarter, operating statements and rent rolls for the Collateral Entity Properties, together with evidence, in form and substance satisfactory to Lender, of the Collateral Value as may of the end of such calendar quarter, in each case certified by the chief financial officer of Lightstone.
(h) Borrower shall furnish to Lender, within thirty (30) days after the end of each month, financial statements of Extended Stay of America Hotels as of the end of or for such month including income statements and cash flow statements reflecting, among other things, a calculation of the EBITDA and revenue per average room of Extended Stay of America Hotels for such month and for the twelve-month period ending on the last day of such month, together with a comparison of such financial statements to the projected financial statements of Extended Stay of America Hotels previously provided by the Loan Parties to Lender for such month, in a form consistent with the form of financial statements of Extended Stay of America Hotels previously furnished to Lender, certified by the chief financial officer of Lightstone.
(i) Any reports, statements or other information required to be reasonably delivered under this Agreement shall be delivered (i) in paper form, (ii) on a diskette, and (iii) if requested by Lender including and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).
(j) Borrower agrees that Lender may forward to each purchaser, transferee, assignee, servicer, participant or investor in all business plans prepared for Borrower and for the operation or any portion of the Property. All financial statements Loan (collectively, an “Investor”) and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, Guarantors and the other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form)Loan Parties, (B) be prepared in accordance with GAAP, and (C) be certified whether furnished by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant periodor either Guarantor or otherwise, as applicable; subjectLender determines necessary or desirable provided that such disclosure is subject to written confidentiality arrangements customary for assignment, howeverservicing, in the case participation or other investment transactions of interim statementssuch type. Borrower irrevocably waives any and all rights it may have under Applicable Law to prohibit such disclosure, including, but not limited, to year-end adjustmentsany right of privacy.
Appears in 2 contracts
Samples: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Financial and Other Reporting. The Borrower will furnish or cause to be furnished to the Administrative Agent at the Administrative Agent’s Office at the address set forth in Section 10.1:
(a) Borrower shall keep As soon as practicable and maintain or shall cause to be kept and maintainedin any event within forty-five (45) days (or, if earlier, on a the date of any required public filing thereof) after the end of the first three fiscal quarters of each Fiscal Year basis(commencing with the fiscal quarter ended July 26, 2015), an unaudited Consolidated statement of financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated statements of operations, changes in shareholders’ investment and cash flows and a report containing management’s discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, all prepared by the Borrower in accordance with GAAP, books, records GAAP and accounts reflecting in reasonable detail all certified by the chief financial officer of the Borrower to present fairly in all material respects the Consolidated financial affairs condition of the Borrower and all items its Subsidiaries as of income their respective dates and expense in connection with the operation Consolidated results of operations of the Property.Borrower and its Subsidiaries for the respective periods then ended, subject to normal year end adjustments and the absence of footnotes;
(b) Borrower shall furnish to Lender As soon as practicable and in any event within seventy (i) annually within one hundred twenty (12070) days following (or, if earlier, on the date of any required public filing thereof) after the end of each Fiscal YearYear (commencing with the fiscal year ended October 25, (ii) within fifty (50) days following 2015), an audited Consolidated statement of financial position of the end of
(A) each calendar month prior to Borrower and its Subsidiaries as of the occurrence close of such Fiscal Year and audited Consolidated statements of operations, changes in shareholders’ investment and cash flows and a Secondary Market Transaction, if requested by Lender, report containing management’s discussion and (B) each calendar quarter after analysis of such financial statements for the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such periodFiscal Year then ended, including a statement of operations (profit and loss)the notes thereto, a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as all prepared in accordance with GAAP. Such annual financial statements shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified financial statement for such period audited by an Ernst & Young LLP or other independent certified public accounting firm acceptable of recognized national standing and accompanied by a report thereon by such certified public accountants that is not qualified with respect to Lender scope limitations imposed by the Borrower or any of its Subsidiaries or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.accordance with GAAP;
(c) Borrower At each time financial statements are delivered pursuant to Sections 6.1(a) or (b) and at such other times as the Administrative Agent shall furnish to Lenderreasonably request, within fifty (50) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such period.an Officer’s Compliance Certificate;
(d) Promptly upon the request of the Administrative Agent, copies of any material reports submitted to the Borrower shall give prompt or any of its Subsidiaries or any of their respective boards of directors (or committees thereof) by their respective independent public accountants in connection with their auditing function;
(e) Promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable “know your customer” and Anti-Money Laundering rules and regulations (including, without limitation, the Act), as from time to time reasonably requested by the Administrative Agent or any Lender;
(f) Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(g) Promptly after any Responsible Officer of the Borrower becoming aware thereof, any announcement by Xxxxx’x or S&P of any change in a Debt Rating;
(h) Promptly after any Responsible Officer of the Borrower becoming aware of the occurrence thereof, written notice to Lender of:
(i) the commencement of any litigation proceeding or governmental proceedings pending investigation by or threatened before any Governmental Authority or any action or proceeding in any court or before any arbitrator against or involving the Borrower which is or any of its Subsidiaries or any of their respective properties, assets or businesses that could reasonably likely be expected to have a Material Adverse Effect;
(ii) (A) any Default or Event of Default or (B) any other event or development which could reasonably be expected to have a Material Adverse Effect; and
(iii) any ERISA Event with respect to any Pension Plan which, alone or together with other ERISA Events which have occurred, might result in liability of the Borrower or any of its ERISA Affiliates in excess of $10,000,000 (or, in the case of events described in clause (v) of the definition of ERISA Event, $750,000) (other than for premiums payable under Title IV of ERISA).
(ei) Borrower shall furnish to Lender, within ten (10) Business Days Promptly after such request, such further other information with respect to Borrower regarding the operations, business affairs and the operation financial condition of the Property Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Propertyrequest. All financial statements and other documents Documents required to be delivered pursuant to this Agreement Section 6.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (Ai) be in form as previously on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at xxx.xxxxxxxxxxx.xxx; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or comparable form)electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., (Bsoft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be prepared in accordance with GAAPrequired to provide paper copies of the Officer’s Compliance Certificates required by Section 6.1(c) to the Administrative Agent. Except for such Officer’s Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (Ca) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be certified “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (v) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (w) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as being true, correct, complete not containing any material non-public information (although it may be sensitive and accurate in all material respects proprietary) with respect to the Borrower or its securities for purposes of United States Federal and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subjectstate securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.11); (x) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the case Platform designated “Public Investor;” (y) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of interim statements, the Platform not designated “Public Investor;” and (z) all Borrower Materials publicly filed with the SEC shall be deemed marked “PUBLIC” and permitted to year-end adjustmentsbe made available through a portion of the Platform designated “Public Investor.”
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Hormel Foods Corp /De/)
Financial and Other Reporting. (a) Borrower shall keep Keep adequate records and maintain or shall books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be kept prepared and maintainedto be furnished to you the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless the Company's certified public accountants concur in any change therein, such change is disclosed to you and the Other Purchasers and is consistent with GAAP and, if required by the Required Holders, the financial covenants set forth in Section 9.3 are amended in a manner requested by the Required Holders to take into account the effects of such change): as soon as available, and in any event within 95 days after the close of each Fiscal Year, unqualified audited balance sheets of the Company and its Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders' equity and cash flow, on a Consolidated basis (and unaudited balance sheets and statements of income, shareholders' equity and cash flow on a consolidating basis), certified without qualification by a firm of independent certified public accountants of recognized national standing (or a firm approved by you and the Other Purchasers) selected by the Company but reasonably acceptable to Required Holders (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated and consolidating figures for the preceding Fiscal Year Year; and, concurrently with the delivery of the above described financial statements, balance sheets of CSP as of the end of its fiscal year and the related statements of income, shareholders' equity and cash flow, on a Consolidated basis, certified, without a going concern qualification, by a firm of independent certified public accountants selected by CSP but reasonably acceptable to Required Holders (provided that you agree that the current accountants are acceptable to you), and setting forth in accordance with GAAPeach case in comparative form the corresponding Consolidated figures for the preceding fiscal year; as soon as available, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.
(b) Borrower shall furnish to Lender (i) annually any event within one hundred twenty (120) 50 days following after the end of each Fiscal Quarter hereafter, including the last Fiscal Quarter of the Company's Fiscal Year, (ii) within fifty (50) days following unaudited balance sheets of the Company and its Subsidiaries as of the end of
(A) of such month and the related unaudited statements of income and cash flow for such month and for the portion of the Company's Fiscal Year then elapsed, on a Consolidated basis and unaudited balance sheets and statements on a consolidating basis, setting forth in each calendar case in comparative form, the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of the Company as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of the Company and its Subsidiaries for such month prior and period subject only to the occurrence of a Secondary Market Transaction, if requested by Lenderchanges from audit and year-end adjustments and except that such statements need not contain notes; as soon as available, and (B) each calendar quarter in any event within 30 days after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each month hereafter (but within 50 days after the last month in a Fiscal Year), including the last month of the Company's Fiscal Year, unaudited balance sheets of the Company and its Subsidiaries as of the end of such month and the related unaudited Consolidated Statements of income and cash flow for such month and for the portion of the Company's Fiscal Year then elapsed, on a trueConsolidated and consolidating basis, completesetting forth in each case in comparative form, correct the corresponding figures for the preceding Fiscal Year and accurate certified by the principal financial officer of the Company as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of the Company and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes; and, concurrently with the delivery of the above described financial statements, financial statements of CSP received by the Company which will be in a form and scope reasonably acceptable to you (you acknowledge that the current form of statement is acceptable); not later than 20 days after each month, (A) a listing of all of the Company's trade payables as of the last Business Day of such month, specifying the name of and balance due each trade creditor, and, such additional information regarding trade payables as the Required Holders may request; (B) management's monthly "Operations Report", in substantially the form previously delivered to you; and (C) a detailed aging of the accounts of the Company and its Subsidiaries, together with a reconciliation to the "borrowing base" calculations set forth on the most recently delivered "borrowing base certificate" referred to in clause (vi) below; promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which the Company has made generally available to its shareholders and copies of any regular, periodic and special reports or registration statements which the Company files with the SEC or any Governmental Entity which may be substituted therefor, or any national securities exchange; and concurrently with their distribution to the Fleet Facility Agent or any holder of the Fleet Facility Debt, copies of all reports, notices and certificates (including, without limitation, each "borrowing base certificate") required to be delivered by the Company pursuant to the Fleet Facility Documents. Upon the Company's receipt, the Company shall deliver to you a copy of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed the accountants' letter to the extent of any extension received for Company's management that is prepared in connection with the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when financial statements delivered pursuant to Section 9.1(c). Concurrently with the REIT Condition is satisfied, Borrower shall, in lieu delivery of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end of statements described in clauses (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter of this Section 9.1(c), or more frequently if requested by you during any period that a Default or Event of Default exists, the Company shall cause to be prepared and furnished to you and the Other Purchasers a Compliance Certificate executed by the chief financial officer of the Company. Promptly after the occurrence of a Secondary Market Transactionsending or filing thereof, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower the Company shall give prompt written notice also provide to Lender you copies of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents annual report to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared filed in accordance with GAAPERISA in connection with each Plan and such other data and information (financial and otherwise) as you, from time to time, may reasonably request bearing upon or related to the Collateral or the Company's and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the each of its Subsidiaries' financial condition or results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsoperations.
Appears in 1 contract
Financial and Other Reporting. (a) Borrower Throughout the Term of this Guaranty, Guarantor shall keep maintain a standard and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, modern system of accounting in accordance with GAAPGAAP and will furnish to Beneficiary and its duly authorized representatives such information respecting its business and financial condition as Beneficiary may reasonably request; and without any request, bookswill furnish to Beneficiary:
(1) monthly, records as soon as available and accounts reflecting in any event within 45 days after the close of each calendar month, a copy of the consolidated and consolidating balance sheets of Guarantor as of the last day of such month and the consolidated statements of operations of Guarantor for the month and for the fiscal year to date period then ended, each in reasonable detail all showing in comparative form the figures for the corresponding date and the period in the previous fiscal year prepared by Guarantor in accordance with GAAP and certified by the Chief Financial Officer of the financial affairs Guarantor or other officers of Borrower and all items of income and expense in connection with the operation of the Property.
(b) Borrower shall furnish to Lender (i) annually within one hundred twenty (120) days following the end of each Fiscal Year, (ii) within fifty (50) days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm Guarantor acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by LenderBeneficiary; provided, however, that during if Guarantor does not in the ordinary course of business prepare any period of time when such monthly financial statements in accordance with GAAP, such non-GAAP financial statements shall be accompanied with a brief explanation of any departures from GAAP;
(2) as soon as available, and in any event within 120 days after the REIT Condition is satisfiedclose of each fiscal year of Guarantor, Borrower shall, in lieu a copy of the consolidated balance sheet of Guarantor as of the close of such fiscal year and the consolidated statements of operations, stockholder’s equity and cash flows of Guarantor for such period then ended, and accompanying notes thereto, all in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion thereon of a firm of independent public accountants registered with the Public Accounting Oversight Board, selected by Guarantor and satisfactory to Beneficiary, to the effect that the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the end financial condition of each Fiscal Year, a true, complete, correct Guarantor as of the close of such fiscal year and accurate copy of Borrower’s certified (but need not be audited) statement the results of operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(profit 3) as soon as available and loss)in any event within the applicable time period specified on Exhibit A hereto, balance sheetthe additional information regarding Guarantor described on Exhibit A hereto, and federal tax returns which Beneficiary may update from time to time upon providing reasonable prior notice to Guarantor;
(provided that delivery of federal tax returns may be delayed 4) promptly after knowledge thereof shall have come to the extent attention of any extension received for the filing responsible officer of such return); and (iii) within fifty (50) days following the end of each calendar monthGuarantor, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end written notice of (i) each calendar month prior to the occurrence of a Secondary Market Transactionany threatened or pending litigation or governmental proceeding which, if requested by Lenderadversely determined, would cause a Material Adverse Event with respect to Guarantor, Member or any Affiliate Pledgor, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct any event that would have the effect of rendering as untrue any of the representations and accurate rent roll and occupancy report for such period.warranties contained in Section 6 of this Guaranty;
(d5) Borrower shall give prompt promptly after receipt thereof, any written notice reports, management letters or other detailed information contained in writing concerning significant aspects of Guarantor’s operations and financial affairs given to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.it by its independent public accountants;
(e6) Borrower shall furnish immediately upon receipt thereof, copies of interim and supplemental reports if any, submitted to Lender, within ten Guarantor by independent accountants in connection with any interim audit or review of the books of Guarantor; and
(107) Business Days after requestwith reasonable promptness, such further other data and information with respect relating to Borrower and business, operations, affairs, financial condition, assets or properties of Guarantor or relating to the operation ability of the Property Guarantor to perform its obligations hereunder as from time to time may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsBeneficiary.
Appears in 1 contract
Financial and Other Reporting. Keep adequate records and books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be prepared and to be furnished to the Administrative Agent and the Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless the New Borrower’s certified public accountants concur in any change therein, such change is disclosed to the Administrative Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 7.2.17 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(a) as soon as available, and in any event within 90 days after the close of each Fiscal Year, audited balance sheets of the New Borrower shall keep and maintain or shall cause to be kept its Subsidiaries as of the end of such Fiscal Year and maintainedthe related statements of income, shareholders’ equity and cash flow, on a consolidated basis, certified without material qualification by the firm of independent certified public accountants the New Borrower currently engages for this purpose, or any other firm reasonably acceptable to the Administrative Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding consolidated figures for the preceding Fiscal Year. The New Borrower may, at its discretion, satisfy this requirement by delivering to the Administrative Agent and the Lenders a copy of its Form 10K filed with the SEC with respect to any Fiscal Year basis, in accordance with GAAP, books, records and accounts reflecting in reasonable detail all of within the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.time period specified above;
(b) as soon as available, and in any event within 45 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of the New Borrower’s Fiscal Year, unaudited balance sheets of the New Borrower shall furnish and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such Fiscal Quarter and for the portion of the New Borrower’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for the New Borrower’s projections previously delivered pursuant to Lender Section 7.1.5, and certified by the principal financial officer of the New Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the New Borrower and its Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes. The New Borrower may, at their discretion, satisfy this requirement by delivering to the Administrative Agent and the Lenders a copy of its Form 10Q filed with the SEC with respect to any Fiscal Year within the time period specified above;
(ic) annually as soon as available, and in any event within one hundred twenty (120) 30 days following after the end of each Fiscal YearMonth hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (b) above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (b) above and in final form at the time specified in subparagraph (a) above), unaudited balance sheets of the New Borrower and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such month and for the portion of the New Borrower’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for the New Borrower’s projections previously delivered pursuant to Section 7.1.5, and certified by the principal financial officer of the New Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the New Borrower and its Subsidiaries for such Fiscal Month and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes;
(iid) promptly following the mailing or receipt of any material notice or report delivered under the First Lien Credit Agreement, copies of such notice or report;
(e) within fifty (50) 15 days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal YearQuarter, a truecertificate in a form reasonably satisfactory to the Administrative Agent, complete, correct and accurate copy executed by the chief financial officer of Borrower’s certified financial statement the New Borrower setting forth the average amount of Liquidity for such period audited by an accounting firm acceptable Fiscal Quarter;
(f) within 15 days after the end of each Fiscal Quarter, information reasonably satisfactory to Lender the Administrative Agent supporting the information set forth in Lenderthe certificate delivered pursuant to subsection (e) above;
(g) within 5 days of the delivery thereof, copies of any Borrowing Base Certificate (as defined in ABL Credit Agreement) delivered to the ABL Administrative Agent;
(h) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which the New Borrower has made generally available to its shareholders and copies of any regular, periodic and special public reports or registration statements which the New Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and
(i) such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time in connection with any Collateral or any Credit Party’s reasonable discretion, including a statement financial condition or business. Concurrently with the delivery of operations the financial information pursuant to clauses (profit a) and loss(b), a Compliance Certificate, executed by the chief financial or accounting officer of the New Borrower, (i) showing compliance with the financial covenants set forth in Section 7.2.17 and stating that no Default has occurred and is continuing (or, if a Default has occurred, specifying the details of such Default and the action that the New Borrower or a Credit Party has taken or proposes to take with respect thereto), (ii) stating that no Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate (or, if a Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate, a statement that such Subsidiary has complied with Section 7.1.17) and (iii) in the case of cash flowsa Compliance Certificate delivered concurrently with the financial information pursuant to clause (a), a calculation of net operating incomeExcess Cash Flow; Promptly after the sending or filing thereof, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed the Borrowers shall also provide to the extent Administrative Agent copies of any extension received for the filing of such return) annual report to be filed in accordance with ERISA in connection with each Pension Plan and such other data and information (financial and otherwise) as the Administrative Agent, from time to time, may reasonably request bearing upon or reports as related to the Collateral or the New Borrower’s and each of its Subsidiaries’ financial condition or results of operations. The Borrowers hereby acknowledge that (i) the Administrative Agent will make available to the Lenders any Communications by posting the Communications on IntraLinks or another similar electronic system (“Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers, the Credit Parties and/or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that (a) all Communications that are to be made available to Public Lenders shall be reasonably requested clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by Lender; marking Communications “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Communications as not containing any material non-public information with respect to the Credit Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of such Communications constitute any extension received for the filing of such returnproprietary, nonpublic and/or confidential information, they shall be treated as set forth in Section 10.15); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish all Communications marked “PUBLIC” are permitted to Lender, within fifty (50) days following be made available through a portion of the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, Platform designated “Public Side Information;” and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower the Administrative Agent shall give prompt written notice be entitled to Lender of treat any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have Communications that are not marked “PUBLIC” as being suitable only for posting on a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation portion of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsPlatform not designated “Public Side Information”.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Standard Register Co)
Financial and Other Reporting. (a) Borrower shall keep use commercially reasonable efforts to comply and maintain or shall cause Manager to be kept and maintained, on a Fiscal Year basis, in accordance with GAAP, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection comply with the operation of the PropertyAnnual Budget.
(b) Borrower shall furnish to Lender (i) annually within one hundred twenty (120) days following the end of each Fiscal Year, (ii) within fifty (50) days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, keep and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct maintain complete and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit books and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu records of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following earnings and expenses of the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating IncomeProperty.
(c) Borrower shall furnish to Lender, at its own expense, within fifty one hundred twenty (50120) days following after the end of each Fiscal Year and within sixty (60) days after the end of each fiscal quarter of Borrower (except year-end), including the Fiscal Year and fiscal quarter during which the Loan is closed, annual or quarterly financial statements as applicable. The financial statements shall be prepared and certified by any officer or other authorized party of Borrower in accordance with the accrual form of Federal Income Tax basis. The annual and quarterly financial statements required hereunder shall include with respect to the Property: (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and balance sheet; (ii) each calendar quarter after a statement of profit and loss; (iii) a detailed summary of operations, including, all rents and other income derived from and all operating and capital expenses paid or incurred in connection with the occurrence of Property; and (iv) a Secondary Market Transaction, a true, complete, correct and accurate certified rent roll and occupancy report for such periodother pertinent information regarding the leasing as may be reasonably required by Lender.
(d) In addition to such annual and quarterly financial statements, Borrower shall furnish to Lender within sixty (60) days after the end of each fiscal quarter, a leasing report for the prior quarter;
(e) As to Guarantor, and without any expense to Lender, Borrower shall furnish, or cause to be furnished, to Lender within one hundred twenty (120) days after the end of each Fiscal Year and within sixty (60) days after the end of each fiscal quarter of Guarantor (except year-end), if any, including the Fiscal Year and quarter during which the Loan is closed, annual or quarterly financial statements, (as applicable), together with a certification from Guarantor and Borrower that Guarantor complies with the Financial Covenants, with the quarterly statements prepared and certified by any officer or other authorized party of Guarantor and, if Guarantor receives audited statements, such audited statements shall be promptly provided to Lender.
(f) Within sixty (60) days after the end of each fiscal quarter of Borrower and one hundred twenty (120) days after the end of each Fiscal Year, Borrower shall deliver to Lender a certification executed by an officer of Borrower certifying to Lender that, as of such date, Borrower complies with the provisions of Section 4.21 of this Agreement.
(g) Lender or its representatives shall have the right to examine and make copies of all books and records and all supporting vouchers and data related to the Property. Such examination may occur at the Property or at Borrower's principal place of business during normal business hours upon at least two (2) Business Days' notice, and shall be at Borrower's sole cost and expense. LOAN AGREEMENT 28 Loan No. 374-1407
(h) Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing involving Borrower which is reasonably likely to have a Material Adverse EffectBorrower.
(ei) For the partial year period commencing on the Closing Date, and for each Fiscal Year thereafter, Borrower shall furnish submit to LenderLender not later than sixty (60) days prior to the commencement of such period or Fiscal Year an Annual Budget for the Property, within ten (10) Business Days after requestwhich such Annual Budget shall include all planned capital expenditures, such further information with respect to Borrower projected income and the operation of projected Operating Expenses, for the Property as may be reasonably requested prepared by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsupcoming Fiscal Year.
Appears in 1 contract
Samples: Loan Agreement (EQT Exeter Real Estate Income Trust, Inc.)
Financial and Other Reporting. (a) Borrower shall keep Keep adequate records and maintain or shall books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be kept prepared and maintainedto be furnished to Agent and Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrower's certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 9.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 95 days after the close of each Fiscal Year, unqualified audited balance sheets of Borrower and its Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders' equity and cash flow, on a Consolidated basis (and unaudited balance sheets and statements of income, shareholders' equity and cash flow on a consolidating basis), certified without qualification by a firm of independent certified public accountants of recognized national standing (or a firm approved by all Lenders) selected by Borrower but reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated and consolidating figures for the preceding Fiscal Year basis, in accordance with GAAP, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.Year;
(bii) Borrower shall furnish to Lender (i) annually as soon as available, and in any event within one hundred twenty (120) 50 days following after the end of each Fiscal Quarter hereafter, including the last Fiscal Quarter of Borrower's Fiscal Year, (ii) within fifty (50) days following unaudited balance sheets of Borrower and its Subsidiaries as of the end ofof such month and the related unaudited statements of income and cash flow for such month and for the portion of Borrower's Fiscal Year then elapsed, on a Consolidated basis and unaudited balance sheets and statements on a consolidating basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrower and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(Aiii) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lenderas soon as available, and (B) each calendar quarter in any event within 30 days after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each month hereafter (but within 50 days after the last month in a Fiscal Year), including the last month of Borrower's Fiscal Year, unaudited balance sheets of Borrower and its Subsidiaries as of the end of such month and the related unaudited Consolidated Statements of income and cash flow for such month and for the portion of Borrower's Fiscal Year then elapsed, on a trueConsolidated and consolidating basis, completesetting forth in each case in comparative form, correct the corresponding figures for the preceding Fiscal Year and accurate certified by the principal financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrower and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(iv) not later than 20 days after each month, a listing of all of Borrower's trade payables as of the last Business Day of such month, specifying the name of and balance due each trade creditor, and, such additional information regarding trade payables as Agent may request; and
(v) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made generally available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange. Upon Borrower's receipt, Borrower shall deliver to Agent and Lenders a copy of the accountants' letter to Borrower’s certified 's management that is prepared in connection with the financial statement for such period audited by an accounting firm acceptable statements delivered pursuant to Lender in Lender’s reasonable discretion, including a statement of operations (profit and lossSection 9.1.3(i), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that . Concurrently with the delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end of statements described in clauses (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter of this Section 9.1.3, or more frequently if requested by Agent or any Lender during any period that a Default or Event of Default exists, Borrower shall cause to be prepared and furnished to Agent and Lenders a Compliance Certificate executed by the chief financial officer of Borrower. Promptly after the occurrence of a Secondary Market Transactionsending or filing thereof, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower shall give prompt written notice also provide to Lender Agent copies of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents annual report to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared filed in accordance with GAAPERISA in connection with each Plan and such other data and information (financial and otherwise) as Agent, from time to time, may reasonably request bearing upon or related to the Collateral or Borrower's and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the each of its Subsidiaries' financial condition or results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsoperations.
Appears in 1 contract
Financial and Other Reporting. Keep adequate records and books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be prepared and to be furnished to the Administrative Agent and the Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless the New Borrower’s certified public accountants concur in any change therein, such change is disclosed to the Administrative Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 7.2.17 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(a) as soon as available, and in any event within 90 days after the close of each Fiscal Year, audited balance sheets of the New Borrower shall keep and maintain or shall cause to be kept its Subsidiaries as of the end of such Fiscal Year and maintainedthe related statements of income, shareholders’ equity and cash flow, on a consolidated basis, certified without material qualification by the firm of independent certified public accountants the New Borrower currently engages for this purpose, or any other firm reasonably acceptable to the Administrative Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding consolidated figures for the preceding Fiscal Year. The New Borrower may, at its discretion, satisfy this requirement by delivering to the Administrative Agent and the Lenders a copy of its Form 10K filed with the SEC with respect to any Fiscal Year basis, in accordance with GAAP, books, records and accounts reflecting in reasonable detail all of within the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.time period specified above;
(b) as soon as available, and in any event within 45 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of the New Borrower’s Fiscal Year, unaudited balance sheets of the New Borrower shall furnish and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such Fiscal Quarter and for the portion of the New Borrower’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for the New Borrower’s projections previously delivered pursuant to Lender Section 7.1.5, and certified by the principal financial officer of the New Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the New Borrower and its Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes. The New Borrower may, at their discretion, satisfy this requirement by delivering to the Administrative Agent and the Lenders a copy of its Form 10Q filed with the SEC with respect to any Fiscal Year within the time period specified above;
(ic) annually as soon as available, and in any event within one hundred twenty (120) 30 days following after the end of each Fiscal YearMonth hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (b) above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (b) above and in final form at the time specified in subparagraph (a) above), unaudited balance sheets of the New Borrower and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such month and for the portion of the New Borrower’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for the New Borrower’s projections previously delivered pursuant to Section 7.1.5, and certified by the principal financial officer of the New Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the New Borrower and its Subsidiaries for such Fiscal Month and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes;
(iid) promptly following the mailing or receipt of any material notice or report delivered under the Second Lien Credit Agreement, copies of such notice or report;
(e) within fifty (50) 15 days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal YearQuarter, a truecertificate in a form reasonably satisfactory to the Administrative Agent, complete, correct and accurate copy executed by the chief financial officer of Borrower’s certified financial statement the New Borrower setting forth the average amount of Liquidity for such period audited by an accounting firm acceptable Fiscal Quarter;
(f) within 15 days after the end of each Fiscal Quarter, information reasonably satisfactory to Lender the Administrative Agent supporting the information set forth in Lenderthe certificate delivered pursuant to subsection (e) above;
(g) within 5 days of the delivery thereof, copies of any Borrowing Base Certificate (as defined in ABL Credit Agreement) delivered to the ABL Administrative Agent;
(h) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which the New Borrower has made generally available to its shareholders and copies of any regular, periodic and special public reports or registration statements which the New Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and
(i) such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time in connection with any Collateral or any Credit Party’s reasonable discretion, including a statement financial condition or business. Concurrently with the delivery of operations the financial information pursuant to clauses (profit a) and loss(b), a Compliance Certificate, executed by the chief financial or accounting officer of the New Borrower, (i) showing compliance with the financial covenants set forth in Section 7.2.17 and stating that no Default has occurred and is continuing (or, if a Default has occurred, specifying the details of such Default and the action that the New Borrower or a Credit Party has taken or proposes to take with respect thereto), (ii) stating that no Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate (or, if a Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate, a statement that such Subsidiary has complied with Section 7.1.17) and (iii) in the case of cash flowsa Compliance Certificate delivered concurrently with the financial information pursuant to clause (a), a calculation of net operating incomeExcess Cash Flow; Promptly after the sending or filing thereof, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed the Borrowers shall also provide to the extent Administrative Agent copies of any extension received for the filing of such return) annual report to be filed in accordance with ERISA in connection with each Pension Plan and such other data and information (financial and otherwise) as the Administrative Agent, from time to time, may reasonably request bearing upon or reports as related to the Collateral or the New Borrower’s and each of its Subsidiaries’ financial condition or results of operations. The Borrowers hereby acknowledge that (i) the Administrative Agent will make available to the Lenders any Communications by posting the Communications on IntraLinks or another similar electronic system (“Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers, the Credit Parties and/or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that (a) all Communications that are to be made available to Public Lenders shall be reasonably requested clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by Lender; marking Communications “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Communications as not containing any material non-public information with respect to the Credit Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of such Communications constitute any extension received for the filing of such returnproprietary, nonpublic and/or confidential information, they shall be treated as set forth in Section 10.15); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish all Communications marked “PUBLIC” are permitted to Lender, within fifty (50) days following be made available through a portion of the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, Platform designated “Public Side Information;” and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower the Administrative Agent shall give prompt written notice be entitled to Lender of treat any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have Communications that are not marked “PUBLIC” as being suitable only for posting on a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation portion of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsPlatform not designated “Public Side Information”.
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall keep and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, in accordance with GAAPsound accounting principles consistently applied, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.
(b) Borrower shall furnish to Lender (i) annually within one hundred twenty ninety (12090) days following the end of each Fiscal Year, and (ii) within fifty (50) days following the end of
(A) within three (3) Business Days following request by Lender (provided, that Borrower shall not be required to provide such statements more than once each calendar month month) prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) within twenty (20) days following the end of each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty twenty (5020) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such periodperiod and such other occupancy and rate statistics as Lender shall request in Lender’s discretion.
(d) Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided and substance acceptable to Lender (or comparable form)in Lender’s reasonable discretion, (B) be prepared in accordance with GAAPsound accounting principles consistently applied, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustments.
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall keep and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, in accordance with GAAPthe Accounting Principles, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.
(b) Borrower shall furnish furnish, or shall cause to Lender (i) be furnished, to Lender, in form and detail reasonably satisfactory to Lender, annually within one hundred twenty ninety (12090) days following the end of each Fiscal Year, (ii) within fifty (50) days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transactioncertified, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial annual year-end income statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, .
(c) Borrower shall furnish furnish, or shall cause to Lender annually within one hundred and twenty (120) days following the end of each Fiscal Yearbe furnished, a true, complete, correct and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentenceform and detail reasonably satisfactory to Lender, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a certified, true, complete, correct and accurate copy of BorrowerGuarantor’s annual audited financial statements, prepared by an independent certified (but need public accountant reasonably acceptable to Lender, including, without limitation, a year-end income statement and balance sheet; provided, however, that notwithstanding the foregoing, for so long as Guarantor is publicly traded and listed on the New York Stock Exchange, NASDAQ Exchange or another nationally recognized publicly-traded stock exchange, Guarantor shall not be auditedrequired to deliver the financial statements set forth in this Section 6.5(c).
(d) statement of operations Borrower shall furnish, or shall cause to be furnished, to Lender, in form and detail reasonably satisfactory to Lender, quarterly within forty-five (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (5045) days following the end of each calendar monthFiscal Quarter (including for each Fiscal Quarter ending on December 31), a calculation of Net Operating Income.
(c) Borrower shall furnish to Lendercertified, within fifty (50) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll copy of operating statements of the Property, detailing the revenues received, the expenses incurred, the net operating income before and occupancy report for after the Monthly Debt Service Payments and containing such period.
(d) Borrower shall give prompt written notice other information as is necessary and sufficient to Lender fairly represent in all material respects the financial position and results of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effectoperation of the Property.
(e) Borrower shall furnish to Lender, within forty-five (45) days following the end of each Fiscal Quarter (including for each Fiscal Quarter ending on December 31), a true, complete, correct and accurate Rent Roll and occupancy report for the Property for such period and such other occupancy and rate information for the Property as Lender shall request in Lender’s reasonable discretion.
(f) Borrower shall furnish, or shall cause to be furnished, to Lender, within thirty (30) days after filing of the same, copies of the Borrower’s federal tax returns and federal tax return extension(s) (if any), together with all schedules thereto (including Schedule K-1).
(g) Borrower shall furnish, or shall cause to be furnished, to Lender within ten (10) Business Days after written request, such further information with respect to Borrower and Borrower, Guarantor and/or the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for Lender.
(h) Concurrently with the operation delivery of the Propertyfinancial statements referred to in Section 6.5(b) above, Borrower shall furnish to Lender, a duly completed Compliance Certificate signed by a responsible officer of Borrower on behalf of Borrower. All financial statements and other documents to be delivered pursuant to this Agreement Section 6.5 shall (A) be in form as previously provided and substance reasonably acceptable to Lender (or comparable form)Lender, (B) be prepared in accordance with GAAPthe Accounting Principles, and (C) be certified by a responsible officer or other authorized party of Borrower on behalf of Borrower or by a responsible officer or other authorized party of Guarantor on behalf of Guarantor, as applicable, as being true, correct, complete and accurate in all material respects and and, with respect to financial statements, fairly reflecting the results of operations and financial condition of Borrower or Guarantor, as applicable, for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustments.
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall keep Keep adequate records and maintain or shall books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be kept prepared and maintainedto be furnished to Agent and Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrower's certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in SECTION 9.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 95 days after the close of each Fiscal Year, unqualified audited balance sheets of Borrower and its Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders' equity and cash flow, on a Consolidated basis (and unaudited balance sheets and statements of income on a consolidating basis), certified without qualification by a firm of independent certified public accountants of recognized national standing (or a firm approved by all Lenders) selected by Borrower but reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated and consolidating figures for the preceding Fiscal Year basisYear, in accordance together with GAAP, books, records and accounts reflecting in reasonable detail all a certification of the financial affairs of Borrower and all items of income and expense in connection with statements by the operation of chief executive officer or the Property.chief financial officer as required by the SEC;
(bii) Borrower shall furnish to Lender (i) annually as soon as available, and in any event within one hundred twenty (120) 50 days following after the end of each Fiscal Quarter hereafter, including the last Fiscal Quarter of Borrower's Fiscal Year, (ii) within fifty (50) days following unaudited balance sheets of Borrower and its Subsidiaries as of the end ofof such month and the related unaudited statements of income and cash flow for such month and for the portion of Borrower's Fiscal Year then elapsed, on a Consolidated basis and unaudited balance sheets and statements of income on a consolidating basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrower and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(Aiii) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lenderas soon as available, and (B) each calendar quarter in any event within 30 days after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each month hereafter (but within 50 days after the last month in a Fiscal Year), including the last month of Borrower's Fiscal Year, unaudited balance sheets and statements of income of Borrower and its Subsidiaries on a true, complete, correct consolidating basis as of the end of such month and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a the related unaudited Consolidated balance sheet, an aged accounts receivable reportstatements of income and cash flow for such month and for the portion of Borrower's Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Borrower as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrower and its Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(iv) not later than 20 days after each month, a listing of all of Borrower’s federal tax returns 's trade payables as of the last Business Day of such month, specifying the name of and balance due each trade creditor, and, such additional information regarding trade payables as Agent may request;
(provided that delivery v) promptly after the sending or filing thereof, as the case may be, copies of federal tax returns any proxy statements, financial statements or reports which Borrower has made generally available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the SEC or any Governmental Authority which may be delayed to the extent of substituted therefor, or any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfiednational securities exchange. Upon Borrower's receipt, Borrower shall, shall deliver to Agent and Lenders a copy of the accountants' letter to Borrower's management that is prepared in lieu connection with the financial statements delivered pursuant to SECTION 9.1.3(i). Concurrently with the delivery of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end of statements described in clauses (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter of this SECTION 9.1.3, or more frequently if requested by Agent or any Lender during any period that a Default or Event of Default exists, Borrower shall cause to be prepared and furnished to Agent and Lenders a Compliance Certificate executed by the chief financial officer of Borrower. Promptly after the occurrence of a Secondary Market Transactionsending or filing thereof, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower shall give prompt written notice also provide to Lender Agent copies of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents annual report to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared filed in accordance with GAAPERISA in connection with each Plan and such other data and information (financial and otherwise) as Agent, from time to time, may reasonably request bearing upon or related to the Collateral or Borrower's and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the each of its Subsidiaries' financial condition or results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsoperations.
Appears in 1 contract
Financial and Other Reporting. Keep adequate records and books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be prepared and to be furnished to the Administrative Agent and the Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless the Borrowers’ certified public accountants concur in any change therein, such change is disclosed to the Administrative Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 7.2.17 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(a) Borrower if directed in writing by the Administrative Agent on or prior to March 20, 2015, Standard Register shall keep use commercially reasonable best efforts to obtain audited balance sheets of Standard Register and maintain or shall cause to be kept its Subsidiaries as of the end of its Fiscal Year ended December 31, 2014 and maintainedthe related statements of income, shareholders’ equity and cash flow, on a consolidated basis, setting forth in each case in comparative form the corresponding consolidated figures for the preceding Fiscal Year basis, and certified by the principal financial officer of Standard Register as prepared in accordance with GAAP, books, records GAAP and accounts reflecting in reasonable detail all fairly presenting the consolidated financial position and results of operations of the financial affairs Borrowers and their Subsidiaries for such Fiscal Year (subject only to changes from audit and year end adjustment and except that such statements need not contain notes), to be delivered to the Administrative Agent no later than May 1, 2015, the costs of Borrower and all items of income and expense which shall be incurred by the Borrowers in connection accordance with the operation of the Property.Budget;
(b) Borrower shall furnish as soon as available, and in any event within 30 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of the Standard Register’s Fiscal Year, unaudited balance sheets of the Borrowers and their Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such Fiscal Quarter and for the portion of Standard Register’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Standard Register as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to Lender changes from audit and year-end adjustments and except that such statements need not contain notes;
(ic) annually as soon as available, and in any event within one hundred twenty (120) 30 days following after the end of each Fiscal YearMonth hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (b) above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (b) above and in final form at the time specified in subparagraph (a) above), unaudited balance sheets of Standard Register and its Subsidiaries and the related unaudited consolidated statements of income and cash flow in each case for such month and for the portion of Standard Register’s Fiscal Year then elapsed, on a consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and certified by the principal financial officer of Standard Register as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the Borrowers and their Subsidiaries for such Fiscal Month and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes;
(d) promptly following the mailing or receipt of any material notice or report delivered under any of the Prepetition Term Loan Facilities or under the ABL DIP Facility, copies of such notice or report;
(i) As soon as practicable in advance of filing with the Bankruptcy Court or delivering to the official creditors’ committee appointed in a Case, if any, or to the United States Trustee for the District of Delaware, as the case may be, the Final Financing Order, all other proposed orders and pleadings related to the Cases, the Facility and/or any sale contemplated in accordance with Section 7.1.20 hereof (all of which must be in form and substance satisfactory to the Administrative Agent), any plan of reorganization or liquidation and/or any disclosure statement related thereto and (ii) within fifty (50) days following substantially simultaneously with the end offiling with the Bankruptcy Court or delivering to the Official Creditors’ Committee appointed in any Case, if any, or to the United States Trustee for the District of Delaware, as the case may be, all other notices, filings, motions, pleadings or other information concerning the financial condition of the Borrowers or other Indebtedness of the Credit Parties that may be filed with the Bankruptcy Court or delivered to the official creditors’ committee appointed in the Case, if any, or to the United States Trustee for the District of Delaware;
(Af) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter within 15 days after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal YearQuarter, a true, complete, correct information reasonably satisfactory to the Administrative Agent supporting the information set forth in the certificate delivered pursuant to subsection (e) above;
(g) an updated Budget and accurate copy of Borrower’s certified financial statement for such period audited by an accounting firm updated Professional Fee Budget every two weeks in form and substance acceptable to Lender the Administrative Agent;
(h) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Standard Register has made generally available to its shareholders and copies of any regular, periodic and special public reports or registration statements which Standard Register files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange;
(i) within two (2) Business Days of the delivery thereof, copies of any Borrowing Base Certificate (as defined in Lender’s reasonable discretion, including a statement ABL DIP Credit Agreement) delivered to the ABL Administrative Agent;
(j) concurrently with the delivery of operations the financial information pursuant to clauses (profit b) and loss(c), a statement Compliance Certificate, executed by the chief financial or accounting officer of cash flowsStandard Register, (i) stating that no Default has occurred and is continuing (or, if a Default has occurred, specifying the details of such Default and the action that Standard Register or a Credit Party has taken or proposes to take with respect thereto), (ii) stating that no Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate (or, if a Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate, a calculation statement that such Subsidiary has complied with Section 7.1.17) and (iii) certifying that it is in compliance with the then current Budget and that all ABL Loans shall have been and will be used solely in accordance with the Budget, subject to Permitted Variances;
(k) an initial 13 week professional fee budget and an updated professional fee budget for each successive 13-week period thereafter (the “Professional Fee Budget”) setting forth in reasonable detail and specificity the projected fees and reimbursable expenses of net operating incomeany and all professionals retained by or on behalf of the Debtors, the Committee, the ABL Lenders and the Lenders;
(l) Borrowers shall provide to the Administrative Agent, at the time or times reasonably requested by the Administrative Agent, but in no event less than Friday of each week after the Closing Date, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery report on the status of federal tax returns may be delayed Borrowers’ efforts and progress with respect to the extent of any extension received for the filing of such return) Sale Covenants and such other information or reports regarding the same as shall be the Administrative Agent may reasonably requested by Lenderrequest; provided, however, that during the Borrowers shall not be required to provide information to the Administrative Agent (or its advisors) if the Administrative Agent or any period of time when Affiliate thereof submits a bid or has a bid submitted on its behalf in connection with the REIT Condition is satisfiedsale contemplated under Section 7.1.20 hereof, Borrower shallfor so long as such bid remains open, including any credit bid, if the Borrowers determine, in lieu their reasonable business judgment, that providing such information or consulting with the Administrative Agent or such advisor regarding any issue, selection, or determination would be likely to have a chilling effect on potential bidding or otherwise be contrary to goal of maximizing value for the Debtors’ estates from the sale process; and
(m) such other reports and information (financial reporting requirements otherwise required by this sentenceor otherwise) as the Administrative Agent may reasonably request from time to time in connection with the Cases, furnish any Collateral or any Credit Party’s financial condition or business. Promptly after the sending or filing thereof, the Borrowers shall also provide to Lender annually within one hundred twenty the Administrative Agent copies of any annual report to be filed in accordance with ERISA in connection with each Pension Plan, any filing made with PBGC under section 4043 of ERISA, the annual funding notice issued under section 101(f) of ERISA, and such other data and information (120financial and otherwise) days following as the end of Administrative Agent, from time to time, may reasonably request bearing upon or related to the Collateral or each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement and each of operations (profit and loss), balance sheet, and federal tax returns (provided its Subsidiaries’ financial condition or results of operations. Each Borrower hereby acknowledges that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end of (i) each calendar month prior the Administrative Agent will make available to the occurrence of a Secondary Market Transaction, if requested Lenders any Communications by Lender, posting the Communications on IntraLinks or another similar electronic system (“Platform”) and (ii) each calendar quarter after certain of the occurrence of a Secondary Market TransactionLenders (each, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d“Public Lender”) Borrower shall give prompt written notice may have personnel who do not wish to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further receive material non-public information with respect to Borrower the Borrowers, the Credit Parties and/or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that (a) all Communications that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Communications “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the operation Lenders to treat such Communications as not containing any material non-public information with respect to the Credit Parties or their securities for purposes of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower United States Federal and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall state securities laws (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subjectprovided, however, that to the extent such Communications constitute any proprietary, nonpublic and/or confidential information, they shall be treated as set forth in Section 10.15); (c) all Communications marked “PUBLIC” are permitted to be made available through a portion of the case Platform designated “Public Side Information;” and (d) the Administrative Agent shall be entitled to treat any Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of interim statements, to year-end adjustmentsthe Platform not designated “Public Side Information”.
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall keep Keep adequate records and maintain or shall books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be kept prepared and maintainedto be furnished to Agent and Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 9.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 90 days after the close of each Fiscal Year, audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a Consolidated basis, certified without a “going concern” or like qualification (other than resulting solely from the upcoming maturity of the Loans or the First Lien Term Loans, if occurring within one year of the time such opinion is delivered) or qualification arising out of the scope of the audit, by the firm of independent certified public accountants Borrowers currently engage for this purpose, or any other firm reasonably acceptable to Agent, and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year. Borrowers may, at their discretion, satisfy this requirement by delivering to Agent and Lenders a copy of its Form 10K filed with the SEC with respect to any Fiscal Year within the time period specified above;
(ii) as soon as available, and in any event within 45 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of Borrowers’ Fiscal Year, unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such Fiscal Quarter and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for Borrowers’ projections previously delivered pursuant to Section 9.1.5, and certified by the principal financial officer of Borrowers as prepared in accordance with GAAPGAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes. Borrowers may, booksat their discretion, records satisfy this requirement by delivering to Agent and accounts reflecting in reasonable detail all Lenders a copy of the financial affairs of Borrower and all items of income and expense in connection its Form 10Q filed with the operation of SEC with respect to any Fiscal Year within the Property.time period specified above;
(biii) Borrower shall furnish to Lender (i) annually as soon as available, and in any event within one hundred twenty (120) 30 days following after the end of each Fiscal Year, Month hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (ii) within fifty above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (50ii) days following above and in final form at the time specified in subparagraph (i) above), unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such month and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for Borrowers’ projections previously delivered pursuant to Section 9.1.5, and certified by the principal financial officer of Borrowers as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Month and period subject only to changes from audit and year end ofadjustments and except that such statements need not contain notes;
(Aiv) each calendar month prior Concurrently with delivery of the Borrowing Base Certificate pursuant to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market TransactionSection 7.6, a truecertificate substantially in the form attached as Exhibit K, complete, correct and accurate copy executed by the chief financial officer of Borrower’s unaudited financial statement SRC setting forth the average amount of Liquidity for such period, including a statement of operations the same period covered by the Borrowing Base Certificate;
(profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually v) within one hundred and twenty (120) 15 days following after the end of each Fiscal YearQuarter, information reasonably satisfactory to Agent supporting the information set forth in the certificate delivered pursuant to subsection (iv) above;
(vi) not later than 15 days after each Fiscal Month, (a) a true, complete, correct and accurate copy listing of all of each Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement trade payables as of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing last Business Day of such returnFiscal Month, specifying the name of and balance due each trade creditor, and, at Agent’s request, monthly detailed trade payable agings in the form customarily prepared by Borrowers and approved by Agent and (b) inventory reports by location of Borrowers and such other information or reports as shall be reasonably requested by Lendertheir respective Subsidiaries; provided, however, that during an Activation Period, Borrowers shall deliver to Agent such reports at such other times as Agent may request;
(vii) promptly after the sending or filing thereof, as the case may be, copies of any period proxy statements, financial statements or reports which any Borrower has made generally available to its shareholders and copies of any regular, periodic and special public reports or registration statements which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and
(viii) such other reports and information (financial or otherwise) as Agent may reasonably request from time when to time in connection with any Collateral or any Obligor’s financial condition or business. Concurrently with the REIT Condition is satisfied, Borrower shall, in lieu delivery of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty statements described in clauses (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and lossi), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); ii) and (iii) within fifty (50) days following of this Section 9.1.3, or more frequently if requested by Agent or any Lender during any period that a Default or Event of Default exists, Borrowers shall cause to be prepared and furnished to Agent and Lenders a Compliance Certificate executed by the end chief financial officer of each calendar monthBorrowers, which Compliance Certificate shall include a schedule of the calculations used in determining, as of the immediately preceding Fiscal Month end, the calculation of Net Operating Income.
the Consolidated Fixed Charge Coverage Ratio for such Fiscal Month. Promptly after the sending or filing thereof, Borrowers shall also provide to Agent copies of any annual report to be filed in accordance with ERISA in connection with each Plan and such other data and information (cfinancial and otherwise) Borrower shall furnish as Agent, from time to Lendertime, within fifty (50) days following may reasonably request bearing upon or related to the end Collateral or any Borrower’s and each of its Subsidiaries’ financial condition or results of operations. Borrowers hereby acknowledge that (i) each calendar month prior Agent and/or Bank of America, N.A. (“Arranger”) will make available to Lenders and the occurrence Letter of a Secondary Market TransactionCredit Issuer materials and/or information provided by or on behalf of Borrowers hereunder (collectively, if requested “Borrower Materials”) by Lender, posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) each calendar quarter after certain of the occurrence of a Secondary Market TransactionLenders (each, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d“Public Lender”) Borrower shall give prompt written notice may have personnel who do not wish to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further receive material non-public information with respect to Borrower and Borrowers or their Affiliates, or the operation respective securities of any of the Property as foregoing, and who may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements engaged in investment and other documents market-related activities with respect to such Persons’ securities. Borrowers hereby agree that (a) all Borrower Materials that are to be delivered pursuant made available to this Agreement Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (Ab) by marking Borrower Materials “PUBLIC,” Borrowers shall be in form deemed to have authorized Agent, the Arranger, Letter of Credit Issuer and Lenders to treat such Borrower Materials as previously provided not containing any material non-public information with respect to Lender Borrowers or their securities for purposes of United States Federal and state securities laws (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subjectprovided, however, that to the extent such Borrower Materials constitute any proprietary, nonpublic and/or confidential information, they shall be treated as set forth in Section 14.17); (c) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the case Platform designated “Public Side Information;” and (d) Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of interim statements, to year-end adjustmentsthe Platform not designated “Public Side Information.”
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall keep Keep adequate records and maintain or shall books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be kept prepared and maintainedto be furnished to Agent and Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 9.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 90 days after the close of each Fiscal Year, audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a Consolidated basis, certified without material qualification by the firm of independent certified public accountants Borrowers currently engage for this purpose, or any other firm reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated figures for the preceding Fiscal Year. Borrowers may, at their discretion, satisfy this requirement by delivering to Agent and Lenders a copy of its Form 10K filed with the SEC with respect to any Fiscal Year within the time period specified above;
(ii) as soon as available, and in any event within 45 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of Borrowers’ Fiscal Year, unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such Fiscal Quarter and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for Borrowers’ projections previously delivered pursuant to Section 9.1.5, and certified by the principal financial officer of Borrowers as prepared in accordance with GAAPGAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year end adjustments and except that such statements need not contain notes. Borrowers may, booksat their discretion, records satisfy this requirement by delivering to Agent and accounts reflecting in reasonable detail all Lenders a copy of the financial affairs of Borrower and all items of income and expense in connection its Form 10Q filed with the operation of SEC with respect to any Fiscal Year within the Property.time period specified above;
(biii) Borrower shall furnish to Lender (i) annually the extent Borrowers are subject to this provision, as soon as available, and in any event within one hundred twenty (120) 30 days following after the end of each Fiscal Year, Month hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (ii) within fifty above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (50ii) days following above and in final form at the time specified in subparagraph (i) above), unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such month and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for Borrowers’ projections previously delivered pursuant to Section 9.1.5, and certified by the principal financial officer of Borrowers as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Month and period subject only to changes from audit and year end ofadjustments and except that such statements need not contain notes; provided, however, the Borrowers shall only be required to provide the foregoing monthly financial statements during an Activation Period;
(Aiv) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter within 15 days after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal YearQuarter, a truecertificate substantially in the form attached as Exhibit K, completeexecuted by the chief financial officer of SRC setting forth the average amount of Liquidity for such Fiscal Quarter;
(v) within 15 days after the end of each Fiscal Quarter, correct and accurate copy information reasonably satisfactory to Agent supporting the information set forth in the certificate delivered pursuant to subsection (iv) above;
(vi) not later than 15 days after each Fiscal Month, (a) a listing of all of each Borrower’s certified trade payables as of the last Business Day of such Fiscal Month, specifying the name of and balance due each trade creditor, and, at Agent’s request, monthly detailed trade payable agings in the form customarily prepared by Borrowers and approved by Agent and (b) inventory reports by location of Borrowers and their respective Subsidiaries;
(vii) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statement statements or reports which any Borrower has made generally available to its shareholders and copies of any regular, periodic and special reports or registration statements which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor, or any national securities exchange; and
(viii) such other reports and information (financial or otherwise) as Agent may reasonably request from time to time in connection with any Collateral or any Obligor’s financial condition or business. Concurrently with the delivery of the financial statements described in clauses (i), (ii) and (iii) of this Section 9.1.3, or more frequently if requested by Agent or any Lender during any period that a Default or Event of Default exists, Borrowers shall cause to be prepared and furnished to Agent and Lenders a Compliance Certificate executed by the chief financial officer of Borrowers, which Compliance Certificate shall include a schedule of the calculations used in determining, as of the immediately preceding Fiscal Month end, the calculation of the Consolidated Fixed Charge Coverage Ratio for such period audited by an accounting firm acceptable Fiscal Month. Promptly after the sending or filing thereof, Borrowers shall also provide to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent Agent copies of any extension received for the filing of such return) annual report to be filed in accordance with ERISA in connection with each Plan and such other data and information (financial and otherwise) as Agent, from time to time, may reasonably request bearing upon or reports as related to the Collateral or any Borrower’s and each of its Subsidiaries’ financial condition or results of operations. Borrowers hereby acknowledge that (i) Agent and/or Banc of America Securities LLC (“Arranger”) will make available to Lenders and the Letter of Credit Issuer materials and/or information provided by or on behalf of Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Borrowers hereby agree that (a) all Borrower Materials that are to be made available to Public Lenders shall be reasonably requested clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by Lender; marking Borrower Materials “PUBLIC,” Borrowers shall be deemed to have authorized Agent, the Arranger, Letter of Credit Issuer and Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of such Borrower Materials constitute any extension received for the filing of such returnproprietary, nonpublic and/or confidential information, they shall be treated as set forth in Section 14.17); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) all Borrower shall furnish Materials marked “PUBLIC” are permitted to Lender, within fifty (50) days following be made available through a portion of the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, Platform designated “Public Side Information;” and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower Agent and the operation Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsPlatform not designated “Public Side Information.”
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall will keep and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, in accordance with GAAPGAAP or on a federal income tax basis (or such other accounting basis reasonably acceptable to Lender), proper and accurate books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation Collateral owned by Borrower. Lender shall have the right from time to time at all times during normal business hours upon reasonable notice to examine such books, records and accounts at the office of Borrower or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence of an Event of Default, Borrower shall pay any costs and expenses incurred by Lender to examine Borrower’s accounting records with respect to the Collateral owned by Borrower as Lender shall determine to be necessary or appropriate in the protection of Lender’s interest. Borrower shall permit Lender and its authorized agents to inspect from time to time any part of the PropertyCollateral owned by Borrower.
(b) Borrower shall will furnish to Lender (i) annually annually, within one hundred twenty (120) days following the end of each Fiscal Year, (ii) within fifty (50) days following the end of
(A) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) 120 days following the end of each Fiscal Year, a true, complete, correct and accurate complete copy of Borrower’s certified unaudited consolidated and consolidating annual financial statement statements for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, Fiscal Year including a statement statements of operations (profit and loss)loss and balance sheets for Borrower and its subsidiaries, a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shallif any, in lieu each case prepared in accordance with GAAP or on a federal income tax basis on a consolidated and consolidating basis and certified by the chief financial officer of the financial reporting requirements otherwise required by this sentence, Borrower. Borrower will also furnish to Lender annually Lender, within one hundred twenty forty-five (12045) days following after the end of each Fiscal Year, a true, complete, correct and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Incomeits operating results.
(c) Borrower shall will furnish to Lender, Lender a copy of each annual Federal income tax return of Borrower within fifty thirty (5030) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such periodfiling thereof.
(d) Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall will furnish to Lender, within ten (10) Business Days after request, a statement of the administrative expenses incurred by Borrower in any month and any such further detailed information with respect to the financial affairs of Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial Lender.
(e) Any reports, statements and or other documents information required to be delivered pursuant to under this Agreement shall be delivered (Ai) be in form as previously provided to Lender (or comparable paper form), (Bii) be prepared in accordance with GAAPon a diskette, and (Ciii) if requested by Lender and within the capabilities of Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be certified prepared using a spreadsheet program and saved as word processing files).
(f) Borrower agrees that Lender may forward to each purchaser, transferee, assignee, servicer, participant or investor in all or any portion of the Loan (collectively, an “Investor”) and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, Guarantors and the other Loan Parties, whether furnished by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the results of operations and financial condition of Borrower for the relevant periodor either Guarantor or otherwise, as applicable; subjectLender determines necessary or desirable. Borrower irrevocably waives any and all rights it may have under Applicable Law to prohibit such disclosure, howeverincluding, in the case of interim statementsbut not limited, to year-end adjustmentsany right of privacy.
Appears in 1 contract
Financial and Other Reporting. (a) Borrower shall keep Keep adequate records and maintain or shall books of account with respect to its business activities in which proper entries are made in accordance with GAAP reflecting all its financial transactions; and cause to be kept prepared and maintainedto be furnished to Agent and Lenders the following (all to be prepared in accordance with GAAP applied on a consistent basis, unless Borrowers’ certified public accountants concur in any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the Required Lenders, the financial covenants set forth in Section 9.3 are amended in a manner requested by the Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 90 days after the close of each Fiscal Year, audited balance sheets of Borrowers and their respective Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a Consolidated and consolidating basis, certified without material qualification by the firm of independent certified public accountants Borrowers currently engage for this purpose, or any other firm reasonably acceptable to Agent (except for a qualification for a change in accounting principles with which the accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated and consolidating figures for the preceding Fiscal Year. Borrowers may, at their discretion, satisfy this requirement by delivering to Agent and Lenders a copy of its Form 10K filed with the SEC with respect to any Fiscal Year within the time period specified above;
(ii) as soon as available, and in any event within 45 days after the end of each of the first 3 Fiscal Quarters in any Fiscal Year, excluding the last Fiscal Quarter of Borrowers’ Fiscal Year, unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such Fiscal Quarter and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated and consolidating basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for Borrowers’ projections previously delivered pursuant to Section 9.1.5, and certified by the principal financial officer of Borrowers as prepared in accordance with GAAPGAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Quarter and period subject only to changes from audit and year-end adjustments and except that such statements need not contain notes. Borrowers may, booksat their discretion, records satisfy this requirement by delivering to Agent and accounts reflecting in reasonable detail all Lenders a copy of the financial affairs of Borrower and all items of income and expense in connection its Form 10Q filed with the operation of SEC with respect to any Fiscal Year within the Property.time period specified above;
(biii) Borrower shall furnish to Lender (i) annually the extent Borrowers are subject to this provision, as soon as available, and in any event within one hundred twenty (120) 30 days following after the end of each Fiscal Year, Month hereafter (except information for the last Fiscal Month of any Fiscal Quarter shall be due at the time specified in subparagraph (ii) within fifty above and information for the last Fiscal Month of any Fiscal Year shall be due in preliminary form at the time specified in subparagraph (50ii) days following above and in final form at the time specified in subparagraph (i) above), unaudited balance sheets of Borrowers and their Subsidiaries and the related unaudited Consolidated Statements of income and cash flow in each case for such month and for the portion of Borrowers’ Fiscal Year then elapsed, on a Consolidated and consolidating basis, setting forth in each case in comparative form, the corresponding figures for the preceding Fiscal Year and for Borrowers’ projections previously delivered pursuant to Section 9.1.5, and certified by the principal financial officer of Borrowers as prepared in accordance with GAAP and fairly presenting the Consolidated financial position and results of operations of Borrowers and their Subsidiaries for such Fiscal Month and period subject only to changes from audit and year-end ofadjustments and except that such statements need not contain notes; provided, however, the Borrowers shall only be required to provide the foregoing monthly financial statements during an Activation Period;
(Aiv) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (B) each calendar quarter within 15 days after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as shall be requested by Lender. In addition, Borrower shall furnish to Lender annually within one hundred and twenty (120) days following the end of each Fiscal YearMonth, a truecertificate substantially in the form attached as Exhibit K, complete, correct and accurate copy executed by the chief financial officer of Borrower’s certified financial statement SRC setting forth the average amount of Liquidity for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations Fiscal Month;
(profit and loss), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such returnv) and such other information or reports as shall be reasonably requested by Lender; provided, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu of the financial reporting requirements otherwise required by this sentence, furnish to Lender annually within one hundred twenty (120) 15 days following after the end of each Fiscal YearMonth, information reasonably satisfactory to Agent supporting the information set forth in the certificate delivered pursuant to subsection (iv) above;
(vi) not later than 15 days after each Fiscal Month, a true, complete, correct and accurate copy listing of all of each Borrower’s certified trade payables as of the last Business Day of such Fiscal Month, specifying the name of and balance due each trade creditor, and, at Agent’s request, monthly detailed trade payable agings in the form customarily prepared by Borrowers and approved by Agent; and
(but need not vii) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which any Borrower has made generally available to its shareholders and copies of any regular, periodic and special reports or registration statements which any Borrower files with the SEC or any Governmental Authority which may be audited) statement of operations (profit and loss)substituted therefor, balance sheet, and federal tax returns (provided that or any national securities exchange. Concurrently with the delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end of financial statements described in clause (i) each calendar month prior of this Section 9.1.3, Borrowers shall deliver to Agent and Lenders a copy of the accountants’ letter to Borrowers’ management that is prepared in connection with such financial statements and also shall cause to be prepared and shall deliver to Agent and Lenders a certificate of the aforesaid certified public accountants stating to Agent and Lenders that, based upon such accountants’ audit of the Consolidated financial statements of Borrowers and their Subsidiaries performed in connection with their examination of said financial statements, nothing came to their attention that caused them to believe that Borrowers were not in compliance with Section 9.3 hereof, or, if they are aware of such noncompliance, specifying the nature thereof, and acknowledging, in a manner satisfactory to Agent, that they are aware that Agent and Lenders are relying on such financial statements in making their decisions with respect to the occurrence Loans. Concurrently with the delivery of a Secondary Market Transaction, if requested by Lender, the financial statements described in clauses (i) and (ii) each calendar quarter of this Section 9.1.3, or more frequently if requested by Agent or any Lender during any period that a Default or Event of Default exists, Borrowers shall cause to be prepared and furnished to Agent and Lenders a Compliance Certificate executed by the chief financial officer of Borrowers. Promptly after the occurrence of a Secondary Market Transactionsending or filing thereof, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower Borrowers shall give prompt written notice also provide to Lender Agent copies of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents annual report to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared filed in accordance with GAAPERISA in connection with each Plan and such other data and information (financial and otherwise) as Agent, from time to time, may reasonably request bearing upon or related to the Collateral or any Borrower’s and (C) be certified by Borrower as being true, correct, complete and accurate in all material respects and fairly reflecting the each of its Subsidiaries’ financial condition or results of operations and financial condition of Borrower for the relevant period, as applicable; subject, however, in the case of interim statements, to year-end adjustmentsoperations.
Appears in 1 contract
Financial and Other Reporting. Company Agent will deliver, or cause to be delivered, to the Creditor Parties each of the following, which shall be in form and detail acceptable to the Agent:
(a) Borrower shall keep As soon as available, and maintain or shall cause to be kept and maintained, on a Fiscal Year basis, in accordance with GAAP, books, records and accounts reflecting in reasonable detail all of the financial affairs of Borrower and all items of income and expense in connection with the operation of the Property.
any event within ninety (b) Borrower shall furnish to Lender (i) annually within one hundred twenty (12090) days following after the end of each Fiscal Yearfiscal year of the Parent, (ii) within fifty (50) days following each Company’s audited financial statements with a report of independent certified public accountants of recognized standing selected by the end of
(A) each calendar month prior Parent and acceptable to the occurrence of a Secondary Market Transaction, if requested by Lender, and Agent (B) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate copy of Borrower’s unaudited financial statement for such period, including a statement of operations (profit and loss“Accountants”), a statement of cash flows, a calculation of net operating income, a balance sheet, an aged accounts receivable report and such other information or reports as which annual financial statements shall be requested by Lender. In addition, Borrower without qualification (other than a “going concern” qualification) and shall furnish to Lender annually within one hundred include each of the Parent’s and twenty (120) days following each of its Subsidiaries’ balance sheet as at the end of such fiscal year and the related statements of each Fiscal Year, a true, complete, correct of the Parent’s and accurate copy each of Borrower’s certified financial statement for such period audited by an accounting firm acceptable to Lender in Lender’s reasonable discretion, including a statement of operations (profit and loss), a statement of cash flows, a calculation of net operating its Subsidiaries’ income, a balance sheet, an aged accounts receivable report, Borrower’s federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received retained earnings and cash flows for the filing of such return) fiscal year then ended, prepared on a consolidating and such other information or reports as shall be reasonably requested by Lender; providedConsolidated basis to include the Parent, however, that during any period of time when the REIT Condition is satisfied, Borrower shall, in lieu each Subsidiary of the financial reporting requirements otherwise required by this sentenceParent and each of their respective affiliates, furnish to Lender annually within one hundred twenty (120) days following the end of each Fiscal Year, a true, complete, correct all in reasonable detail and accurate copy of Borrower’s certified (but need not be audited) statement of operations (profit and loss), balance sheet, and federal tax returns (provided that delivery of federal tax returns may be delayed to the extent of any extension received for the filing of such return); and (iii) within fifty (50) days following the end of each calendar month, a calculation of Net Operating Income.
(c) Borrower shall furnish to Lender, within fifty (50) days following the end of (i) each calendar month prior to the occurrence of a Secondary Market Transaction, if requested by Lender, and (ii) each calendar quarter after the occurrence of a Secondary Market Transaction, a true, complete, correct and accurate rent roll and occupancy report for such period.
(d) Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened involving Borrower which is reasonably likely to have a Material Adverse Effect.
(e) Borrower shall furnish to Lender, within ten (10) Business Days after request, such further information with respect to Borrower and the operation of the Property as may be reasonably requested by Lender including all business plans prepared for Borrower and for the operation of the Property. All financial statements and other documents to be delivered pursuant to this Agreement shall (A) be in form as previously provided to Lender (or comparable form), (B) be prepared in accordance with GAAP, together with (i) if and when available, copies of any management letters prepared by the Accountants; and (Cii) be certified by Borrower a certificate of the Parent’s President, Chief Executive Officer or Chief Financial Officer stating that such financial statements have been prepared in accordance with GAAP and whether or not such officer has knowledge of the occurrence of any Default or Event of Default hereunder and, if so, stating in reasonable detail the facts with respect thereto;
(b) As soon as being trueavailable and in any event within forty five (45) days after the end of each fiscal quarter of the Parent, correctan unaudited/internal balance sheet and statements of income, complete retained earnings and accurate in all material respects cash flows of each of the Parent’s and fairly reflecting each of its Subsidiaries’ as at the results end of operations and financial condition of Borrower for such quarter and for the relevant periodyear to date period then ended, as applicable; subjectprepared on a consolidating and Consolidated basis to include the Parent, howevereach Subsidiary of the Parent and each of their respective affiliates, in reasonable detail and stating in comparative form the case of interim statementsfigures for the corresponding date and periods in the previous year, all prepared in accordance with GAAP, subject to year-end adjustments and accompanied by a certificate of the Parent’s President, Chief Executive Officer or Chief Financial Officer, stating (i) that such financial statements have been prepared in accordance with GAAP, subject to year-end audit adjustments., and (ii) whether or not such officer has knowledge of the occurrence of any Default or Event of Default hereunder not theretofore reported and remedied and, if so, stating in reasonable detail the facts with respect thereto;
Appears in 1 contract
Samples: Security Agreement (Rapid Link Inc)
