Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information as Lender may reasonably request, from time to time, in such detail as may reasonably be required by Lender. (b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor. (c) During the term hereunder, sGuarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Guarantor to Lender as true, correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor. (d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth of not less than $100,000,000.00 and Liquidity of not less than $5,000,000.00, in each case as calculated in accordance with GAAP. (e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 3 contracts
Samples: Limited Recourse Guaranty, Limited Recourse Guaranty (American Realty Capital New York City REIT, Inc.), Limited Recourse Guaranty (American Realty Capital New York City REIT, Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information as Lender may reasonably request, from time to time, in such detail as may reasonably be required by Lender.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a Guarantor’s balance sheet, income statement, tax returns and statement statements of cash flows, net worth and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearcontingent liabilities. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant accountants (which accountants shall be reasonably acceptable to Lender, ) and (B) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender.
(d) During the term hereunder, Guarantor will furnish or cause to be furnished to Lender within forty (40) days after the end of the first, second and third calendar quarters and within ninety (90) days after the end of the fourth calendar quarter, an Officer’s Certificate certifying as to Guarantor’s compliance with the Unencumbered Liquid Assets requirement set forth in Section 26(e) hereof, together with all financial information reasonably requested by Lender with respect to such calculations. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(de) Guarantor shall, at At all times while the Debt remains unsatisfiedTLG Promissory Notes (defined below) and/or the Convertible Notes (defined below) remain outstanding, Guarantor shall maintain a Net Worth Unencumbered Liquid Assets (defined below) of not less than $100,000,000.00 an aggregate amount sufficient to pay the outstanding principal amount of each of the TLG Promissory Notes and Liquidity the outstanding principal amount of each of the Convertible Notes in full, provided that (1) the TLG Promissory Notes shall not be deemed to be outstanding if the maturity dates of such TLG Promissory Notes are extended on or before the November 2014 maturity date of such TLG Promissory Notes to a date not earlier than the end of the November 2016 calendar month and (2) the Convertible Notes shall not be deemed to be outstanding if the maturity dates of such Convertible Notes are extended on or before the October 2014 maturity date of such Convertible Notes to a date not earlier than October 15, 2016.
(i) For purposes hereof, “Cash and Cash Equivalents” shall mean: (1) United States dollars and (2) any of the following which may be liquidated without restrictions within five (5) Business Days or less: (A) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than six (6) months from the date of acquisition; (B) certificates of deposit and Eurodollar time deposits with maturities of six (6) months or less than $5,000,000.00from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500 million and an S&P Certificate of Deposit Rating (short term) of A-1 or better or the equivalent by Xxxxx’x; (C) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clauses (2)(A) and (B) above entered into with any financial institution meeting the qualifications specified in clause (2) (B) above; (D) commercial paper having the highest rating obtainable from Xxxxx’x or S&P, and in each case as calculated maturing within six months after the date of acquisition; and (E) money market funds substantially all the assets of which are comprised of securities and other obligations of the types described in accordance with GAAPclauses (1) and (2)(A) through (D) above.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 3 contracts
Samples: Limited Recourse Guaranty (Morgans Hotel Group Co.), Limited Recourse Guaranty (Morgans Hotel Group Co.), Limited Recourse Guaranty (Morgans Hotel Group Co.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender Administrative Agent and/or Lenders and any authorized representatives of Lender Administrative Agent and/or Lenders to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to LenderAdministrative Agent, upon LenderAdministrative Agent’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender Administrative Agent may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by LenderAdministrative Agent, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender Administrative Agent and/or Lenders shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Administrative Agent and/or Lender, as applicable.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to LenderAdministrative Agent, (i) as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal yearyear of Guarantor, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be Guarantor in form and substance substantially similar to those previously delivered by Guarantor to Lender Administrative Agent in connection with the closing of the Loan (or such other form reasonably acceptable to Administrative Agent), prepared on an audited basis, and which shall include a Guarantor’s balance sheet, income statement, sheet and statement statements of cash flowsnet worth and contingent liabilities, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of within sixty (60) days following the end of each fiscal quarter of Guarantor (including year-end) , the preceding fiscal yearquarterly financial statements of Guarantor in form and substance substantially similar to those previously delivered by Guarantor to Administrative Agent in connection with the closing of the Loan (or such other form reasonably acceptable to Administrative Agent), prepared on an unaudited basis, and which shall include Guarantor’s balance sheet and statements of net worth and contingent liabilities. All such annual financial statements shall (A) be, in the case of annual financial statements, audited by, and in the case of quarterly financial statements, prepared by, Guarantor’s independent certified public accountants (which accountants shall be prepared and audited by a “Big 4Four” accounting firm or such other independent certified public accountant accounting firm reasonably acceptable to LenderAdministrative Agent), (B) be certified by Guarantor (subject to Lender the exculpation provisions in the Loan Agreement) to Administrative Agent as true, true and correct and complete, in all material respects and as having been prepared in accordance with an Approved Accounting Method (which, for the purposes of this Guaranty only, shall include International Financial Reporting Standards) applied on a consistent basis and (C) contain such backup and/or supporting information as may be reasonably requested by LenderAdministrative Agent, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor. In addition, Guarantor shall promptly furnish to Lender Administrative Agent any other financial information in respect of Guarantor which is reasonably requested by Lender Administrative Agent from time to time in respect of time; provided, however, that such additional information shall be obtained at no material expense to Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants:
(i) Beginning on the commencement of the second Extension Period (if the Maturity Date is so extended pursuant to the terms of the Loan Agreement) and at all times thereafter while the Debt remains unsatisfied, Guarantor shall maintain Unencumbered Liquid Assets (defined below) of not less than $20,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), and (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ.
(ii) As of the last day of each fiscal quarter, Guarantor shall have a Net Worth, as determined by Administrative Agent, of not less than $750,000,000.00; provided, however, and without limiting the foregoing, at all times while the Debt remains unsatisfied, maintain a Guarantor’s Net Worth of Worth, as calculated by Administrative Agent, shall not be less than $100,000,000.00 and Liquidity of not 500,000,000.00. Guarantor shall promptly provide Administrative Agent with written notice at any time that Guarantor’s Net Worth is less than $5,000,000.00750,000,000.00. For the purposes of this clause (ii), “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets, based on market valuations, as of such date (exclusive of any equity attributable to the Property or in each case any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities (taking into consideration contingent liabilities but exclusive of any liability under the Loan Documents) as calculated of such date, determined in accordance with GAAPan Approved Accounting Method (which, for the purposes of this Guaranty only, shall include International Financial Reporting Standards).
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 3 contracts
Samples: Unfunded Obligations Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Completion Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Lender.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, (i) as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal yearyear of Guarantor, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be Guarantor in form and substance substantially similar to those previously delivered by Guarantor to Lender in connection with the closing of the Loan (or such other form reasonably acceptable to Lender), prepared on an audited basis, and which shall include a Guarantor’s balance sheet, income statement, sheet and statement statements of cash flowsnet worth and contingent liabilities, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of within sixty (60) days following the end of each fiscal quarter of Guarantor (including year-end) , the preceding fiscal yearquarterly financial statements of Guarantor in form and substance substantially similar to those previously delivered by Guarantor to Lender in connection with the closing of the Loan (or such other form reasonably acceptable to Lender), prepared on an unaudited basis, and which shall include Guarantor’s balance sheet and statements of net worth and contingent liabilities. All such annual financial statements shall (A) be, in the case of annual financial statements, audited by, and in the case of quarterly financial statements, prepared by, Guarantor’s independent certified public accountants (which accountants shall be prepared and audited by a “Big 4Four” accounting firm or such other independent certified public accountant accounting firm reasonably acceptable to Lender), (B) be certified by Guarantor (subject to the exculpation provisions in the Loan Agreement) to Lender as true, true and correct and complete, in all material respects and as having been prepared in accordance with an Approved Accounting Method (which, for the purposes of this Guaranty only, shall include International Financial Reporting Standards) applied on a consistent basis and (C) contain such backup and/or supporting information as may be reasonably requested by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor’s normal course of operations, can be produced at a de minimis cost to Guarantor. In addition, Guarantor shall promptly furnish to Lender any other financial information in respect of Guarantor which is reasonably requested by Lender from time to time in respect of time; provided, however, that such additional information shall be obtained at no material expense to Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants:
(i) Beginning on the commencement of the second Extension Period (if the Maturity Date is so extended pursuant to the terms of the Loan Agreement) and at all times thereafter while the Debt remains unsatisfied, Guarantor shall maintain Unencumbered Liquid Assets (defined below) of not less than $20,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), and (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ.
(ii) As of the last day of each fiscal quarter, Guarantor shall have a Net Worth, as determined by Lender, of not less than $750,000,000.00; provided, however, and without limiting the foregoing, at all times while the Debt remains unsatisfied, maintain a Guarantor’s Net Worth of Worth, as calculated by Lender, shall not be less than $100,000,000.00 and Liquidity of not 500,000,000.00. Guarantor shall promptly provide Lender with written notice at any time that Guarantor’s Net Worth is less than $5,000,000.00750,000,000.00. For the purposes of this clause (ii), “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets, based on market valuations, as of such date (exclusive of any equity attributable to the Property or in each case any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities (taking into consideration contingent liabilities but exclusive of any liability under the Loan Documents) as calculated of such date, determined in accordance with GAAPan Approved Accounting Method (which, for the purposes of this Guaranty only, shall include International Financial Reporting Standards).
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 2 contracts
Samples: Mezzanine Loan Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.), Mezzanine Loan Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Each Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender Agent and any authorized representatives of Lender Agent to have access to and to inspect, examine and make copies of the books and records, any and all financial accounts, financial data and other documents of such Guarantor, at all reasonable times, during normal business hours, at such Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Each Guarantor shall also provide to LenderAgent, upon LenderAgent’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender Agent may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by LenderAgent.
(b) Without limiting On the provisions date hereof and immediately following the effectiveness of Section 26(a)this Guaranty, Lender shall have the righteach Guarantor will be Solvent. As used in this paragraph, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder“Solvent” means, sGuarantor will furnish or cause with respect to be furnished to Lendereach Guarantor on a particular date, as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All that on such annual financial statements shall date (A) be prepared the present fair market value (or present fair saleable value) of the assets of such Guarantor are not less than the total amount required to pay the probable liabilities of such Guarantor on its total existing debts and audited by a “Big 4” accounting firm or other independent certified public accountant reasonably acceptable to Lenderliabilities (including contingent liabilities) as they become absolute and matured, (B) be certified by such Guarantor is able to Lender realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as truethey mature and become due in the normal course of business, correct and complete, in all material respects and (C) contain such backup and/or supporting information Guarantor is not incurring debts or liabilities beyond its ability to pay as may be reasonably requested by Lendersuch debts and liabilities mature and (D) such Guarantor is not engaged in any business or transaction, and is not about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Guarantor is engaged. In additioncomputing the amount of such contingent liabilities at any time, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(d) Guarantor shall, it is intended that such liabilities will be computed at all times while the Debt remains unsatisfied, maintain a Net Worth of not less than $100,000,000.00 and Liquidity of not less than $5,000,000.00amount that, in each case as calculated in accordance with GAAPthe light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 2 contracts
Samples: Loan and Security Agreement (Vivakor, Inc.), Guaranty (Vivakor, Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) as necessary to confirm compliance with the financial covenants of Guarantor set forth in this Section 1.12, shall permit Lender and any authorized representatives of Lender to have reasonable access to and to inspect, inspect and examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information as Lender may reasonably request, from time to time, in such detail as may reasonably be required by Lender.
(b) Without limiting Guarantor hereby represents and warrants that, as of the provisions of Section 26(adate hereof, Guarantor is in compliance with the Guarantor Financial Covenants (as hereinafter defined). At all times while the Debt remains unsatisfied, Lender Guarantor shall have comply with the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of GuarantorGuarantor Financial Covenants.
(c) During the term hereunder, sGuarantor will furnish or cause so long as substantially all of the business of Global Net Lease, Inc. (“REIT”) is conducted through Guarantor and substantially all of REIT’s assets and liabilities are held by Guarantor, Guarantor shall deliver to be furnished to Lender, as soon as available, and in any event Lender (i) within one hundred and twenty five (120105) days after the end of each fiscal yearFiscal Year of Global Net Lease, Inc. (i“REIT”) (A) an Officer’s Certificate certifying as to the annual consolidated compliance of Guarantor with the Guarantor Financial Covenants and (B) financial statements of American Realty Capital New York City REITREIT audited by an independent certified public accountant, Inc., which are inclusive in the form provided to Lender in connection with the closing of the GuarantorLoan or otherwise in form reasonably approved by Lender, which together with an Officer’s Certificate certifying that such annual financial statement presents fairly the financial condition and the results of operations of REIT and that such financial statements shall be have been prepared in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, accordance with GAAP; and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer within sixty (60) days after the end of Guarantor each calendar quarter, (A) an Officer’s Certificate certifying as to the Net Worth and Liquidity compliance of Guarantor as with the Guarantor Financial Covenants and (B) unaudited financial statements of REIT, in the form provided to Lender in connection with the closing of the end Loan or otherwise as reasonably approved by Lender, together with an Officer’s Certificate certifying that such financial statement presents fairly the financial condition and the results of the preceding fiscal yearoperations of REIT and that such financial statements have been prepared in accordance with GAAP. All such If substantially all of REIT’s business is no longer conducted through Guarantor or substantially all of REIT’s assets and liabilities are not held by Guarantor, Guarantor shall furnish audited annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other independent certified public accountant reasonably acceptable to Lender, (B) be certified by unaudited quarterly financial statements of Guarantor to Lender as true, correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lenderlieu of the financial statements of REIT in accordance with the preceding sentence. In addition, Guarantor shall promptly furnish provide (a) to Lender the extent available (but without obligation to prepare them), any annual financial statements or quarterly financial statements of Guarantor within the time periods set forth above, together with an Officer’s Certificate certifying that such financial statements present fairly the financial condition and the results of operations of Guarantor, (b) any other financial information reasonably requested by Lender from time to time which Lender believes is material and relevant in respect reviewing Guarantor’s compliance with the Guarantor Financial Covenants (with Lender acknowledging and agreeing that Guarantor may respond to any such request for additional financial statements of GuarantorGuarantor by providing consolidated financial statements of REIT).
(d) Until all of the Obligations and the Guaranteed Obligations have been paid in full, (A) Guarantor shall, shall at all times while the Debt remains unsatisfied, maintain a Net Worth equal to or in excess of not less than $100,000,000.00 200,000,000.00 (excluding its interest in the Properties) and Liquidity (B) Guarantor shall at all times maintain Liquid Assets having a market value of not less than at least $5,000,000.005,000,000.00 (collectively, in each case as calculated in accordance with GAAP“Guarantor Financial Covenants”).
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) as necessary to confirm compliance with the financial covenants of Guarantor set forth in this Section 1.12, shall permit Lender and any authorized representatives of Lender to have reasonable access to and to inspect, inspect and examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information as Lender may reasonably request, from time to time, in such detail as may reasonably be required by Lender.
(b) Without limiting Guarantor hereby represents and warrants that, as of the provisions of Section 26(adate hereof, Guarantor is in compliance with the Guarantor Financial Covenants (as hereinafter defined). At all times while the Debt remains unsatisfied, Lender Guarantor shall have comply with the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of GuarantorGuarantor Financial Covenants.
(c) During the term hereunder, sGuarantor will furnish or cause Guarantor shall deliver to be furnished to Lender, as soon as available, and in any event Lender (a) within one hundred and twenty ninety (12090) days after the end of each fiscal yearFiscal Year of Borrower (i) an Officer’s Certificate certifying as to the compliance of Guarantor with the Guarantor Financial Covenants and (ii) financial statements audited by an independent certified public accountant, which shall include an annual balance sheet and profit and loss statement of Guarantor, in the form provided to Lender in connection with the closing of the Loan or otherwise in form reasonably approved by Lender, together with an Officer’s Certificate certifying that such annual financial statement presents fairly the financial condition and the results of operations of Guarantor and that such financial statements have been prepared in accordance with GAAP; and (b) within forty-five (45) days after the end of each calendar quarter, (i) an Officer’s Certificate certifying as to the annual consolidated financial statements compliance of American Realty Capital New York City REIT, Inc., which are inclusive of Guarantor with the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, Financial Covenants and (ii) a certificate delivered unaudited financial statements of Guarantor, in the form provided to Lender in connection with the closing of the Loan or otherwise as reasonably approved by Guarantor which is signed by Responsible Officer Lender, together with an Officer’s Certificate certifying that such financial statement presents fairly the financial condition and the results of operations of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All that such annual financial statements shall (A) be have been prepared and audited by a “Big 4” accounting firm or other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Guarantor to Lender as true, correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lenderaccordance with GAAP. In addition, Guarantor shall promptly furnish to Lender provide any other financial information reasonably requested by Lender from time to time which Lender believes is material and relevant in respect of reviewing Guarantor’s compliance with the Guarantor Financial Covenants.
(d) Until all of the Obligations and the Guaranteed Obligations have been paid in full, (A) Guarantor shall, shall at all times while the Debt remains unsatisfied, maintain a Net Worth equal to or in excess of not $300,000,000.00 (excluding its interest in the Properties), provided that, from and after such time that the combined outstanding principal balance of the Loan and the Mortgage Loan, in the aggregate, is less than $100,000,000.00 300,000,000.00, Guarantor shall at all times maintain a minimum Net Worth equal to the greater of (x) the then combined outstanding principal balance of the Loan and Liquidity the Mortgage Loan in the aggregate and (y) $150,000,000.00 and (B) Guarantor shall at all times maintain Liquid Assets having a market value of not at least $25,000,000.00, which minimum market value of Liquid Assets may be reduced to $15,000,000.00 in the event the outstanding Debt is equal to $100,000,00.00 or less than $5,000,000.00(collectively, in each case as calculated in accordance with GAAP“Guarantor Financial Covenants”).
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Lender, as applicable.
(c) During the term hereunder, sGuarantor will furnish or cause the Guarantor, shall deliver to be furnished Lender (i) within ninety (90) days following the end of each calendar quarter, with respect to Lenderthe prior calendar quarter, unaudited quarterly and year-to-date statements of income and expense (prepared in accordance with GAAP) for the Guarantor together with a balance sheet as soon of the end of such prior calendar quarter for the Guarantor together with a certificate of an officer of the Guarantor (A) setting forth in reasonable detail the Guarantor’s Net Worth (and, if applicable, Unencumbered Liquid Assets) as availableof the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying that such quarterly financial statements are true, correct, accurate and complete and fairly present the financial condition and results of the operations of the Guarantor in any event a manner consistent with GAAP, and (ii) within one hundred and twenty (120) days after following the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive calendar year a complete copy of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such ’s annual financial statements shall (A) be prepared and audited by a “Big 4Four” accounting firm firm, BDO USA, LLP, Gxxxx Xxxxxxxx LLP, RSM US LLP, or any other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Lender prepared in accordance with GAAP and if required and Lender has so notified the Guarantor to Lender as true, correct including statements of income and complete, in all material respects expense and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of cash flow and a balance sheet for the Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants: As of the last day of each fiscal quarter, at all times while the Debt remains unsatisfied, Guarantor shall maintain a Net Worth of not less than $100,000,000.00 and Liquidity Unencumbered Liquid Assets (defined below) of not less than $5,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ, and (z) any irrevocable, non-discretionary, uncalled capital commitments of Guarantor’s investors to Guarantor (other than persons that (i) are the subject of a bankruptcy proceeding as of the applicable date of determination, or (ii) have previously defaulted with respect to such capital commitment, which default has not been cured) that are payable in cash and readily available to be called by Guarantor without restriction or any other condition at any time and from time to time other than notice. Notwithstanding the foregoing, at any time when the Guarantor is Brookfield DTLA Holdings LLC, Guarantor shall not be subject to this clause (i).
(ii) As of the last day of each case fiscal quarter, Guarantor shall have a Net Worth, as calculated determined by Lender, of not less than $50,000,000.00. For the purposes of this clause (ii) , “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets as of such date (exclusive of any equity attributable to the Property or in any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities as of such date, determined in accordance with GAAPan Approved Accounting Method.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Mezzanine Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Lender, as applicable.
(c) During the term hereunder, sGuarantor will furnish or cause the Guarantor, shall deliver to be furnished Lender (i) within ninety (90) days following the end of each calendar quarter, with respect to Lenderthe prior calendar quarter, unaudited quarterly and year-to-date statements of income and expense (prepared in accordance with GAAP) for the Guarantor together with a balance sheet as soon of the end of such prior calendar quarter for the Guarantor together with a certificate of an officer of the Guarantor (A) setting forth in reasonable detail the Guarantor’s Net Worth (and, if applicable, Unencumbered Liquid Assets) as availableof the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying that such quarterly financial statements are true, correct, accurate and complete and fairly present the financial condition and results of the operations of the Guarantor in any event a manner consistent with GAAP, and (ii) within one hundred and twenty (120) days after following the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive calendar year a complete copy of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such ’s annual financial statements shall (A) be prepared and audited by a “Big 4Four” accounting firm firm, BDO USA, LLP, Gxxxx Xxxxxxxx LLP, RSM US LLP, or any other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Lender prepared in accordance with GAAP and if required and Lender has so notified the Guarantor to Lender as true, correct including statements of income and complete, in all material respects expense and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of cash flow and a balance sheet for the Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants:
(i) As of the last day of each fiscal quarter, at all times while the Debt remains unsatisfied, Guarantor shall maintain a Net Worth of not less than $100,000,000.00 and Liquidity Unencumbered Liquid Assets (defined below) of not less than $5,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ, and (z) any irrevocable, non-discretionary, uncalled capital commitments of Guarantor’s investors to Guarantor (other than persons that (i) are the subject of a bankruptcy proceeding as of the applicable date of determination, or (ii) have previously defaulted with respect to such capital commitment, which default has not been cured) that are payable in cash and readily available to be called by Guarantor without restriction or any other condition at any time and from time to time other than notice. Notwithstanding the foregoing, at any time when the Guarantor is Brookfield DTLA Holdings LLC, Guarantor shall not be subject to this clause (i).
(ii) As of the last day of each case fiscal quarter, Guarantor shall have a Net Worth, as calculated determined by Lender, of not less than $75,000,000.00. For the purposes of this clause (ii), “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets as of such date (exclusive of any equity attributable to the Property or in any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities as of such date, determined in accordance with GAAPan Approved Accounting Method.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty ninety (12090) days after the end of each fiscal calendar year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a Guarantor’s balance sheet, income statement, tax returns and statement statements of cash flows, net worth and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearcontingent liabilities. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant accountants (which accountants shall be reasonably acceptable to Lender, ) and (B) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth net worth of not less $112,000,000 and a liquidity of not less than $100,000,000.00 2,500,000. For the purposes hereof, Guarantor’s net worth and Liquidity of not less than $5,000,000.00liquidity shall be determined by Lender in its reasonable discretion, in each case as calculated in accordance with GAAPat any time and from time to time, and Guarantor’s net worth shall exclude any equity attributable to the Property.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (Strategic Storage Trust II, Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor each Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty thirty-five (120135) days after the end of each fiscal calendar year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered prepared by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant reasonably acceptable to LenderLender prepared in accordance with tax based accounting, and which shall include Guarantor’s statements of net worth and contingent liabilities. All such financial statements shall (BA) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (CB) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth of not less than $100,000,000.00 and Liquidity of not less than $5,000,000.00, in each case as calculated in accordance with GAAP.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Guaranty of Recourse Obligations (Pacific Oak Strategic Opportunity REIT II, Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon LenderXxxxxx’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by LenderXxxxxx.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty ninety (12090) days after the end of each fiscal calendar year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a Guarantor’s balance sheet, income statement, tax returns and statement statements of cash flows, net worth and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearcontingent liabilities. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant accountants (which accountants shall be reasonably acceptable to Lender, ) and (B) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by LenderXxxxxx. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender Xxxxxx from time to time in respect of Guarantor.
(d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth of not less than $100,000,000.00 and Liquidity of not less than $5,000,000.00, in each case as calculated in accordance with GAAP.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information as Lender may reasonably request, from time to time, in such detail as may reasonably be required by Lender.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a Guarantor’s balance sheet, income statement, tax returns and statement statements of cash flows, net worth and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearcontingent liabilities. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant accountants (which accountants shall be reasonably acceptable to Lender, ) and (B) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender.
(d) During the term hereunder, Guarantor will furnish or cause to be furnished to Lender within forty (40) days after the end of the first, second and third calendar quarters and within ninety (90) days after the end of the fourth calendar quarter, an Officer’s Certificate certifying as to Guarantor’s compliance with the Unencumbered Liquid Assets requirement set forth in Section 26(e) hereof, together with all financial information reasonably requested by Lender with respect to such calculations. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(de) Guarantor shall, at At all times while the Debt remains unsatisfiedTLG Promissory Notes (defined below) and/or the Convertible Notes (defined below) remain outstanding, Guarantor shall maintain a Net Worth Unencumbered Liquid Assets (defined below) of not less than $100,000,000.00 an aggregate amount sufficient to pay the outstanding principal amount of each of the TLG Promissory Notes and Liquidity the outstanding principal amount of each of the Convertible Notes in full, provided that (1) the TLG Promissory Notes shall not be deemed to be outstanding if the maturity dates of such TLG Promissory Notes are extended on or before the November 2014 maturity date of such TLG Promissory Notes to a date not earlier than the end of the November 2016 calendar month and (2) the Convertible Notes shall not be deemed to be outstanding if the maturity dates of such Convertible Notes are extended on or before the October 2014 maturity date of such Convertible Notes to a date not earlier than October 15, 2016.
(i) For purposes hereof, “Cash and Cash Equivalents” shall mean: (1) United States dollars and (2) any of the following which may be liquidated without restrictions within five (5) Business Days or less: (A) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than six (6) months from the date of acquisition; (B) certificates of deposit and Eurodollar time deposits with maturities of six (6) months or less than $5,000,000.00from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500 million and an S&P Certificate of Deposit Rating (short term) of A-1 or better or the equivalent by Moody’s; (C) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in clauses (2)(A) and (B) above entered into with any financial institution meeting the qualifications specified in clause (2) (B) above; (D) commercial paper having the highest rating obtainable from Moody’s or S&P, and in each case as calculated maturing within six months after the date of acquisition; and (E) money market funds substantially all the assets of which are comprised of securities and other obligations of the types described in accordance with GAAPclauses (1) and (2)(A) through (D) above.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender Administrative Agent and/or Lenders and any authorized representatives of Lender Administrative Agent and/or Lenders to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to LenderAdministrative Agent, upon LenderAdministrative Agent’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender Administrative Agent may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by LenderAdministrative Agent, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender Administrative Agent and/or Lenders shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Administrative Agent and/or Lender, as applicable.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to LenderAdministrative Agent, (i) as soon as available, and in any event within one hundred and twenty (120) days after the end of each fiscal yearyear of Guarantor, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be Guarantor in form and substance substantially similar to those previously delivered by Guarantor to Lender Administrative Agent in connection with the closing of the Loan (or such other form reasonably acceptable to Administrative Agent), prepared on an audited basis, and which shall include a Guarantor’s balance sheet, income statement, sheet and statement statements of cash flowsnet worth and contingent liabilities, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of within sixty (60) days following the end of each fiscal quarter of Guarantor (including year-end), the preceding fiscal yearquarterly financial statements of Guarantor in form and substance substantially similar to those previously delivered by Guarantor to Administrative Agent in connection with the closing of the Loan (or such other form reasonably acceptable to Administrative Agent), prepared on an unaudited basis, and which shall include Guarantor’s balance sheet and statements of net worth and contingent liabilities. All such annual financial statements shall (A) be, in the case of annual financial statements, audited by, and in the case of quarterly financial statements, prepared by, Guarantor’s independent certified public accountants (which accountants shall be prepared and audited by a “Big 4Four” accounting firm or such other independent certified public accountant accounting firm reasonably acceptable to LenderAdministrative Agent), (B) be certified by Guarantor (subject to Lender the exculpation provisions in the Loan Agreement) to Administrative Agent as true, true and correct and complete, in all material respects and as having been prepared in accordance with an Approved Accounting Method (which, for the purposes of this Guaranty only, shall include International Financial Reporting Standards) applied on a consistent basis and (C) contain such backup and/or supporting information as may be reasonably requested by LenderAdministrative Agent, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor’s normal course of operations, can be produced at a de minimis cost to Guarantor. In addition, Guarantor shall promptly furnish to Lender Administrative Agent any other financial information in respect of Guarantor which is reasonably requested by Lender Administrative Agent from time to time in respect of time; provided, however, that such additional information shall be obtained at no material expense to Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants:
(i) Beginning on the commencement of the second Extension Period (if the Maturity Date is so extended pursuant to the terms of the Loan Agreement) and at all times thereafter while the Debt remains unsatisfied, Guarantor shall maintain Unencumbered Liquid Assets (defined below) of not less than $20,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), and (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ.
(ii) As of the last day of each fiscal quarter, Guarantor shall have a Net Worth, as determined by Administrative Agent, of not less than $750,000,000.00; provided, however, and without limiting the foregoing, at all times while the Debt remains unsatisfied, maintain a Guarantor’s Net Worth of Worth, as calculated by Administrative Agent, shall not be less than $100,000,000.00 and Liquidity of not 500,000,000.00. Guarantor shall promptly provide Administrative Agent with written notice at any time that Guarantor’s Net Worth is less than $5,000,000.00750,000,000.00. For the purposes of this clause (ii), “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets, based on market valuations, as of such date (exclusive of any equity attributable to the Property or in each case any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities (taking into consideration contingent liabilities but exclusive of any liability under the Loan Documents) as calculated of such date, determined in accordance with GAAPan Approved Accounting Method (which, for the purposes of this Guaranty only, shall include International Financial Reporting Standards).
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) as necessary to confirm compliance with the financial covenants of Guarantor set forth in this Section 1.12, shall permit Lender and any authorized representatives of Lender to have reasonable access to and to inspect, inspect and examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information as Lender may reasonably request, from time to time, in such detail as may reasonably be required by Lender.
(b) Without limiting Guarantor hereby represents and warrants that, as of the provisions of Section 26(adate hereof, Guarantor is in compliance with the Guarantor Financial Covenants (as hereinafter defined). At all times while the Debt remains unsatisfied, Lender Guarantor shall have comply with the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of GuarantorGuarantor Financial Covenants.
(c) During the term hereunder, sGuarantor will furnish or cause Guarantor shall deliver to be furnished to Lender, as soon as available, and in any event Lender (a) within one hundred and twenty ninety (12090) days after the end of each fiscal yearFiscal Year of Borrower (i) an Officer’s Certificate certifying as to the compliance of Guarantor with the Guarantor Financial Covenants and (ii) financial statements audited by an independent certified public accountant, which shall include an annual balance sheet and profit and loss statement of Guarantor, in the form provided to Lender in connection with the closing of the Loan or otherwise in form reasonably approved by Lender, together with an Officer’s Certificate certifying that such annual financial statement presents fairly the financial condition and the results of operations of Guarantor and that such financial statements have been prepared in accordance with GAAP; and (b) within forty-five (45) days after the end of each calendar quarter, (i) an Officer’s Certificate certifying as to the annual consolidated financial statements compliance of American Realty Capital New York City REIT, Inc., which are inclusive of Guarantor with the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, Financial Covenants and (ii) a certificate delivered unaudited financial statements of Guarantor, in the form provided to Lender in connection with the closing of the Loan or otherwise as reasonably approved by Guarantor which is signed by Responsible Officer Lender, together with an Officer’s Certificate certifying that such financial statement presents fairly the financial condition and the results of operations of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All that such annual financial statements shall (A) be have been prepared and audited by a “Big 4” accounting firm or other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Guarantor to Lender as true, correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lenderaccordance with GAAP. In addition, Guarantor shall promptly furnish to Lender provide any other financial information reasonably requested by Lender from time to time which Lender believes is material and relevant in respect of reviewing Guarantor’s compliance with the Guarantor Financial Covenants.
(d) Until all of the Obligations and the Guaranteed Obligations have been paid in full, (A) Guarantor shall, shall at all times while the Debt remains unsatisfied, maintain a Net Worth equal to or in excess of not $300,000,000.00 (excluding its interest in the Properties), provided that, from and after such time that the combined outstanding principal balance of the Loan and the Mezzanine Loan, in the aggregate, is less than $100,000,000.00 300,000,000.00, Guarantor shall at all times maintain a minimum Net Worth equal to the greater of (x) the then combined outstanding principal balance of the Loan and Liquidity the Mezzanine Loan in the aggregate and (y) $150,000,000.00 and (B) Guarantor shall at all times maintain Liquid Assets having a market value of not at least $25,000,000.00, which minimum market value of Liquid Assets may be reduced to $15,000,000.00 in the event the outstanding Debt is equal to $100,000,00.00 or less than $5,000,000.00(collectively, in each case as calculated in accordance with GAAP“Guarantor Financial Covenants”).
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) in the event of the occurrence and continuance of an Event of Default, shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payment, costs, expenses, revenues and earnings, and such other documentation as Lender may reasonably request, from time to timetime (other than audited financial statements which are provided to Lender pursuant to subsection (c) below), in such detail as may reasonably be required by LenderLender which (in each case) are available or reasonably obtainable using systems of Guarantor that are currently in place.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time time, during reasonable business hours and upon the giving of reasonable notice of such intent, upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within sixty (60) days after the end of each calendar quarter, the quarterly consolidated financial statements of American Finance Trust, Inc. (“AFIN”), which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by AFIN to Lender and which shall include Guarantor’s statement of net worth. Such quarterly financial statements shall be certified by Guarantor or AFIN to Lender as true and correct in all material respects. In addition, during the term hereunder, Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty five (120105) days after the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the GuarantorAFIN, which financial statements shall be prepared on an audited basis, in form substantially similar to those previously delivered by Guarantor AFIN to Lender and which shall include a Guarantor’s balance sheet, income statement, and statement of net worth and, if available, cash flows, flows for all Individual Properties and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearentities constituting Borrower. All such annual financial statements shall (A) with respect to AFIN’s annual financial statements, be prepared and audited by a “Big 4” accounting firm or other AFIN’s independent certified public accountant accountants (which accountants shall be reasonably acceptable to Lender), (B) be certified by Guarantor or AFIN to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of GuarantorGuarantor (other than audited financial statements which are provided to Lender pursuant to this subsection).
(d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth net worth of not less than $100,000,000.00 1,000,000,000. For the purposes hereof, Guarantor’s net worth shall be determined by Lender in its reasonable discretion, at any time and Liquidity of not less than $5,000,000.00from time to time, in each case as calculated in accordance with GAAPand Guarantor’s net worth shall include any equity attributable to the Properties.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (American Finance Trust, Inc)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Lender, as applicable.
(c) During the term hereunder, sGuarantor will furnish or cause the Guarantor, shall deliver to be furnished Lender (i) within ninety(90) days following the end of each calendar quarter, with respect to Lenderthe prior calendar quarter, unaudited quarterly and year-to-date statements of income and expense (prepared in accordance with GAAP) for the Guarantor together with a balance sheet as soon of the end of such prior calendar quarter for the Guarantor together with a certificate of an officer of the Guarantor (A) setting forth in reasonable detail the Guarantor’s Net Worth (and, if applicable, Unencumbered Liquid Assets) as availableof the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying that such quarterly financial statements are true, correct, accurate and complete and fairly present the financial condition and results of the operations of the Guarantor in any event a manner consistent with GAAP, and (ii) within one hundred and twenty (120) days after following the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive calendar year a complete copy of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such ’s annual financial statements shall (A) be prepared and audited by a “Big 4Four” accounting firm firm, BDO USA, LLP, Gxxxx Xxxxxxxx LLP, RSM US LLP, or any other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Lender prepared in accordance with GAAP and if required and Lender has so notified the Guarantor to Lender as true, correct including statements of income and complete, in all material respects expense and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of cash flow and a balance sheet for the Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants: As of the last day of each fiscal quarter, at all times while the Debt remains unsatisfied, Guarantor shall maintain a Net Worth of not less than $100,000,000.00 and Liquidity Unencumbered Liquid Assets (defined below) of not less than $5,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ, and (z) any irrevocable, non-discretionary, uncalled capital commitments of Guarantor’s investors to Guarantor (other than persons that (i) are the subject of a bankruptcy proceeding as of the applicable date of determination, or (ii) have previously defaulted with respect to such capital commitment, which default has not been cured) that are payable in cash and readily available to be called by Guarantor without restriction or any other condition at any time and from time to time other than notice. Notwithstanding the foregoing, at any time when the Guarantor is Brookfield DTLA Holdings LLC, Guarantor shall not be subject to this clause (i).
(ii) As of the last day of each case fiscal quarter, Guarantor shall have a Net Worth, as calculated determined by Lender, of not less than $75,000,000.00. For the purposes of this clause (ii), “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets as of such date (exclusive of any equity attributable to the Property or in any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities as of such date, determined in accordance with GAAPan Approved Accounting Method.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Mezzanine Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable timestimes (which shall be at Guarantor’s expense during the continuance of an Event of Default), during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty ninety (12090) days after the end of each fiscal calendar year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a Guarantor’s balance sheet, income statement, tax returns and statement statements of cash flows, net worth and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearcontingent liabilities. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant reasonably accountants (which accountants shall be acceptable to Lender, which acceptance shall not be unreasonably withheld; provided, however, the following accountants listed on Schedule B attached hereto shall be deemed acceptable by Lender) and (B) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth of not less than $100,000,000.00 and Liquidity of not less than $5,000,000.00, in each case as calculated in accordance with GAAP.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (Strategic Storage Trust, Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Lender, as applicable.
(c) During the term hereunder, sGuarantor will furnish or cause the Guarantor, shall deliver to be furnished Lender (i) within ninety (90) days following the end of each calendar quarter, with respect to Lenderthe prior calendar quarter, unaudited quarterly and year-to-date statements of income and expense (prepared in accordance with GAAP) for the Guarantor together with a balance sheet as soon of the end of such prior calendar quarter for the Guarantor together with a certificate of an officer of the Guarantor (A) setting forth in reasonable detail the Guarantor’s Net Worth (and, if applicable, Unencumbered Liquid Assets) as availableof the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying that such quarterly financial statements are true, correct, accurate and complete and fairly present the financial condition and results of the operations of the Guarantor in any event a manner consistent with GAAP, and (ii) within one hundred and twenty (120) days after following the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive calendar year a complete copy of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such ’s annual financial statements shall (A) be prepared and audited by a “Big 4Four” accounting firm firm, BDO USA, LLP, Gxxxx Xxxxxxxx LLP, RSM US LLP, or any other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Lender prepared in accordance with GAAP and if required and Lender has so notified the Guarantor to Lender as true, correct including statements of income and complete, in all material respects expense and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of cash flow and a balance sheet for the Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants:
(i) As of the last day of each fiscal quarter, at all times while the Debt remains unsatisfied, Guarantor shall maintain a Net Worth of not less than $100,000,000.00 and Liquidity Unencumbered Liquid Assets (defined below) of not less than $5,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in its reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below), (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ, and (z) any irrevocable, non-discretionary, uncalled capital commitments of Guarantor’s investors to Guarantor (other than persons that (i) are the subject of a bankruptcy proceeding as of the applicable date of determination, or (ii) have previously defaulted with respect to such capital commitment, which default has not been cured) that are payable in cash and readily available to be called by Guarantor without restriction or any other condition at any time and from time to time other than notice. Notwithstanding the foregoing, at any time when the Guarantor is Brookfield DTLA Holdings LLC, Guarantor shall not be subject to this clause (i).
(ii) As of the last day of each case fiscal quarter, Guarantor shall have a Net Worth, as calculated determined by Lender, of not less than $50,000,000.00. For the purposes of this clause (ii), “Net Worth” shall mean, as of a given date, (i) Guarantor’s total assets as of such date (exclusive of any equity attributable to the Property or in any other asset that is part of the collateral for the Loan) less, (ii) Guarantor’s total liabilities as of such date, determined in accordance with GAAPan Approved Accounting Method.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, not more than once per calendar year (subject to Section 26(b) hereof), at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payments, costs, expenses, revenues and earnings, and other documentation as Lender may reasonably request, from time to time, and with such other information, in such detail as may reasonably be required by Lender, provided that such requested information is in Guarantor’s possession and control and, to the extent not produced in Guarantor's normal course of operations, can be produced at a de minimis cost to Guarantor.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time upon the occurrence and continuance of an “Event of Default” Default hereunder or under the other Loan Documents, to audit the books and records of Guarantor; provided, however, that such audit shall be made at the expense of Lender, as applicable.
(c) During the term hereunder, sGuarantor will furnish or cause the Guarantor, shall deliver to be furnished Lender (i) within ninety (90) days following the end of each calendar quarter, with respect to Lenderthe prior calendar quarter, unaudited quarterly and year-to-date statements of income and expense (prepared in accordance with GAAP) for the Guarantor together with a balance sheet as soon of the end of such prior calendar quarter for the Guarantor together with a certificate of an officer of the Guarantor (A) setting forth in reasonable detail the Guarantor’s Net Worth (and, if applicable, Unencumbered Liquid Assets) as availableof the end of such prior calendar quarter and based on the foregoing quarterly financial statements, and (B) certifying that such quarterly financial statements are true, correct, accurate and complete and fairly present the financial condition and results of the operations of the Guarantor in any event a manner consistent with GAAP, and (ii) within one hundred and twenty (120) days after following the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive calendar year a complete copy of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a balance sheet, income statement, and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal year. All such ’s annual financial statements shall (A) be prepared and audited by a “Big 4Four” accounting firm firm, BDO USA, LLP, Gxxxx Xxxxxxxx LLP, RSM US LLP, or any other independent certified public accountant reasonably acceptable to Lender, (B) be certified by Lender prepared in accordance with GAAP and if required and Lender has so notified the Guarantor to Lender as true, correct including statements of income and complete, in all material respects expense and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of cash flow and a balance sheet for the Guarantor.
(d) Guarantor shallhereby makes the following additional affirmative covenants: As of the last day of each fiscal quarter, at all times while the Debt remains unsatisfied, Guarantor shall maintain a Net Worth of not less than $100,000,000.00 and Liquidity Unencumbered Liquid Assets (defined below) of not less than $5,000,000.00. For the purposes hereof, “Unencumbered Liquid Assets” shall be determined by Lender in each case as calculated in accordance with GAAP.
(e) As used in this Sectionits reasonable discretion, at any time and from time to time, and shall mean the “liquid assets” of Guarantor, free and clear of all liens and shall include only the following terms shall have the respective meanings assets of Guarantor as set forth on Guarantor’s balance sheet: (x) all Cash and Cash Equivalents (defined below:), (y) the following, to the extent acquired for investment or with a view to achieving trading profits (and which may be liquidated without restrictions within five (5) Business Days or less): marketable securities owned of record and beneficially by Guarantor and which are freely tradeable, without any restriction on the New York Stock Exchange, NYSE Amex Equities or NASDAQ, and (z) any irrevocable, non-discretionary, uncalled capital commitments of Guarantor’s investors to Guarantor (other than persons that (i) are the subject of a bankruptcy proceeding as of the applicable date of determination, or (ii) have previously defaulted with respect to such capital commitment, which default has not been cured) that are payable in cash and readily available to be called by Guarantor without restriction or any other condition at any time and from time to time other than notice. Notwithstanding the foregoing, at any time when the Guarantor is Brookfield DTLA Holdings LLC, Guarantor shall not be subject to this clause (i).
Appears in 1 contract
Samples: Limited Recourse Guaranty (Brookfield DTLA Fund Office Trust Investor Inc.)
Financial Covenants of Guarantor. (a) Guarantor (i) shall keep and maintain complete and accurate books and records and (ii) in the event of the occurrence and continuance of an Event of Default, shall permit Lender and any authorized representatives of Lender to have access to and to inspect, examine and make copies of the books and records, any and all accounts, data and other documents of Guarantor, at all reasonable times, during normal business hours, at Guarantor’s address for notices as set forth herein upon the giving of reasonable notice of such intent. Guarantor shall also provide to Lender, upon Lender’s reasonable request, such information proofs of payment, costs, expenses, revenues and earnings, and such other documentation as Lender may reasonably request, from time to time, in such detail as may reasonably be required by LenderLender which (in each case) are available or reasonably obtainable using systems of Guarantor that are currently in place.
(b) Without limiting the provisions of Section 26(a), Lender shall have the right, at any time and from time to time time, during reasonable business hours and upon the giving of reasonable notice of such intent, upon the occurrence and continuance of an “Event of Default” hereunder or under the other Loan Documents, to audit the books and records of Guarantor.
(c) During the term hereunder, sGuarantor Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within sixty (60) days after the end of each calendar quarter, the quarterly consolidated financial statements of Guarantor, which financial statements shall be prepared on an unaudited basis, in form substantially similar to those previously delivered by Guarantor to Lender and which shall include Guarantor’s balance sheet and statements of net worth and liquidity. Such quarterly financial statements shall be certified by Guarantor to Lender as true and correct in all material respects. In addition, during the term hereunder, Guarantor will furnish or cause to be furnished to Lender, as soon as available, and in any event within one hundred and twenty fifteen (120115) days after the end of each fiscal year, (i) the annual consolidated financial statements of American Realty Capital New York City REIT, Inc., which are inclusive of the Guarantor, which financial statements shall be in form substantially similar to those previously delivered by Guarantor to Lender and which shall include a Guarantor’s balance sheet, income statementstatements of net worth and liquidity and, if available, cash flows for all Individual Properties and statement of cash flows, and (ii) a certificate delivered to Lender by Guarantor which is signed by Responsible Officer of Guarantor certifying as to the Net Worth and Liquidity of Guarantor as of the end of the preceding fiscal yearentities constituting Borrower. All such annual financial statements shall (A) be prepared and audited by a “Big 4” accounting firm or other Guarantor’s independent certified public accountant accountants (which accountants shall be reasonably acceptable to Lender), (B) be certified by Guarantor to Lender as true, true and correct and complete, in all material respects and (C) contain such backup and/or supporting information as may be reasonably requested by Lender. In addition, Guarantor shall promptly furnish to Lender any other financial information reasonably requested by Lender from time to time in respect of Guarantor.
(d) Guarantor shall, at all times while the Debt remains unsatisfied, maintain a Net Worth net worth of not less $475,000,000 and a liquidity of not less than $100,000,000.00 30,000,000. For the purposes hereof, Guarantor’s net worth and Liquidity of not less than $5,000,000.00liquidity shall be determined by Lender in its reasonable discretion, in each case as calculated in accordance with GAAPat any time and from time to time, and Guarantor’s net worth shall exclude any equity attributable to the Properties.
(e) As used in this Section, the following terms shall have the respective meanings set forth below:
Appears in 1 contract
Samples: Limited Recourse Guaranty (American Finance Trust, Inc)
