Access to Financial Information Buyer’s representatives shall have access to, and Seller and its Affiliates shall cooperate with Buyer and furnish upon request, all financial and other information relating to the Hotel’s operations to the extent necessary to enable Buyer’s representatives to prepare audited financial statements in conformity with Regulation S-X of the Securities and Exchange Commission (the “SEC”) and other applicable rules and regulations of the SEC and to enable them to prepare a registration statement, report or disclosure statement for filing with the SEC on behalf of Buyer or its Affiliates, whether before or after Closing and regardless of whether such information is included in the Records to be transferred to Buyer hereunder. Seller shall also provide to Buyer’s representative a signed representation letter in form and substance reasonably acceptable to Seller sufficient to enable an independent public accountant to render an opinion on the financial statements related to the Hotel. Buyer will reimburse Seller for costs reasonably incurred by Seller to comply with the requirements of the preceding sentence to the extent that Seller is required to incur costs not in the ordinary course of business for third parties to provide such representation letters. The provisions of this Section shall survive Closing or termination of this Contract.
Financial Information, etc The Borrower and the Company shall (and in the case of paragraph (c) below the Borrower and/or the relevant Guarantor shall) furnish, or cause to be furnished to the Administrative Agent for each Lender copies of the following financial statements, reports and information (all of which shall be computed in Dollars):
(a) together with the financial statements delivered pursuant to Clauses 15.1(c) and (d) hereof, a Compliance Certificate;
(b) within 10 days after the last day of each calendar month, a Borrowing Base Certificate;
(c) within 65 days after the close of each of the first three quarters of each Fiscal Year, Consolidated balance sheets of the Borrower, each Guarantor and of the Group at the close of such quarter, and the related Consolidated and consolidating statements of income and retained earnings, stockholders' equity and statements of changes in financial position of the Borrower and each Guarantor for the period commencing at the end of the previous Fiscal Year and ending with the close of such quarter, certified by a Managing Director or a Senior Vice President or Vice President of the Borrower and each Guarantor prepared in accordance with GAAP;
(d) within 135 days after the close of each Fiscal Year, Consolidated balance sheets at the close of such Fiscal Year and the related Consolidated statements of income and retained earnings, stockholders' equity and changes in financial position for such Fiscal Year, of the Borrower, each Guarantor and of the Group, certified without qualification by Price Waterhouse SARL or other independent public accountants of recognized standing selected by the Borrower and acceptable to the Majority Lenders;
(e) promptly upon the mailing thereof to stockholders generally, any annual report, proxy statement or other communication;
(f) promptly upon any filing thereof by the Borrower or any Guarantor with the Banque Centrale du Luxembourg or the Securities and Exchange Commission, any annual, periodic or special report or registration statement (exclusive of exhibits thereto) or any prospectus generally available to the public;
(g) promptly from time to time at the reasonable request of the Administrative Agent, valuations (appraisals) from the Borrower's independent valuers approved by the Administrative Agent (acting reasonably) of land, properties under development and operating properties held by the Borrower and the Guarantors (or any of them) and the Qualifying Issuers which are Subsidiaries and in the case of other Qualifying Issuers if the Borrower or any Guarantor or the Investment Adviser has such valuations;
(h) if in the Administrative Agent's reasonable opinion the aggregate Market Value of Qualifying Collateral has been adversely affected in a material way for whatever reason, a Borrowing Base Certificate dated and delivered within ten days of a request by the Administrative Agent which Borrowing Base Certificate shall demonstrate compliance with the Borrowing Base based upon the Market Value as defined in Clause 1.1 (Defined Terms) subject to the following modifications:
(i) the closing sale or bid price, as the case may be, of a Qualifying Security quoted by the Pricing Service as of the Business Day immediately preceding the date of the Borrowing Base Certificate shall apply;
(ii) in all other cases the values or amounts used for the purposes of the most recent Compliance Certificate delivered under Clause 15.1(a) shall apply for those items forming part of the Qualifying Collateral at the date of the Borrowing Base Certificate or if the relevant Qualifying Security has been acquired since the date of the most recent Compliance Certificate the value basis set forth in the definition of Market Value shall be used for such items;
(i) if at any time the Borrower has reason to believe that the aggregate Market Value of Qualifying Collateral quoted by the Pricing Service has been adversely affected in a material way for whatever reason, the Borrower shall immediately (and in any event within one Business Day of such time) notify the Administrative Agent and deliver a Borrowing Base Certificate within ten days of such notification which Borrowing Base Certificate shall demonstrate compliance with the Borrowing Base based upon the Market Value as defined in Clause 1.1 (Terms defined) subject to the modification set forth in paragraph (i) of sub- paragraph (h) above; and
(j) promptly from time to time such other information with respect to the Qualifying Collateral or the financial condition and operations of the Group or any member thereof as any Lender may, through the Administrative Agent, from time to time reasonably request.
Basic Financial Information The Company shall furnish the following reports to each Lender, so long as it is a holder of a Note:
(a) as soon as practicable, but in any event within 90 days after the end of each fiscal year of the Company, (i) audited balance sheets of the Company as at the end of such year, together with audited statements of income and retained earnings and statements of cash flows of the Company for such year, together with notes related thereto, each prepared in accordance with GAAP, consistently applied, and setting out in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and certified by certified independent public accountants of established national reputation, and (ii) a report of the principal financial officer of the Company containing a management discussion and analysis of the Company’s consolidated financial condition at the end of such year and the results of operations for such year, including, but not limited to, a description of significant events with respect to the Company and its Subsidiaries, if any, during the preceding year and any planned or anticipated significant activities or events during the upcoming months;
(b) as soon as practicable, but in any event within 45 days after the end of each of the first three fiscal quarters of the Company in each year, (i) an unaudited balance sheet at the end of such quarter, and unaudited statements of income, of profit and loss and of changes in financial condition of the Company (including cash flow statements) for such period and for the current fiscal year to date, in each case prepared in accordance with GAAP, consistently applied (other than for accompanying notes and subject to changes resulting from year-end audit adjustments), and (ii) a report of the principal financial officer of the Company containing a management discussion and analysis of the Company’s consolidated financial condition at the end of such quarter and the results of operations for such quarter and the year to date, including, but not limited to, a description of significant events with respect to the Company and its Subsidiaries, if any, during such periods and any planned or anticipated significant activities or events during the upcoming months; and
(c) with reasonable promptness such other information and financial data concerning the Company as any Person entitled to receive materials under this Section 5.2 may reasonably request.
Other Financial Information Budgets, sales projections, operating plans and other financial information reasonably requested by Bank.
Financial Information Upon written request the Company agrees to send or make available the following reports to the Buyer until the Buyer transfers, assigns, or sells all of the Securities: (i) within ten (10) days after the filing with the SEC, a copy of its Annual Report on Form 10-K its Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K; (ii) within one (1) day after release, copies of all press releases issued by the Company or any of its Subsidiaries; and (iii) contemporaneously with the making available or giving to the shareholders of the Company, copies of any notices or other information the Company makes available or gives to such shareholders.
OPERATIONAL INFORMATION Rent Schedule and Increases from Previous Quarter Number Monthly Rent Rent Increases Effective of Units Basic / Market Amount Percent Date 1 Bedroom ________ ______________ _________________ ________ 2 Bedroom ________ ______________ _________________ ________ 3 Bedroom ________ ______________ _________________ ________ PROPOSED MAINTENANCE Completed Funded by Type Description or Operations or Amount Planned Reserves ------------------------------------------------------------------------------ Interior Painting ------------------------------------------------------------------------------ Exterior Painting ------------------------------------------------------------------------------ Siding ------------------------------------------------------------------------------ Roofing ------------------------------------------------------------------------------ Drainage ------------------------------------------------------------------------------ Paving ------------------------------------------------------------------------------ Landscaping ------------------------------------------------------------------------------ Playground ------------------------------------------------------------------------------ Community Room ------------------------------------------------------------------------------ Laundry Room ------------------------------------------------------------------------------ Common Areas ------------------------------------------------------------------------------ Carpet ------------------------------------------------------------------------------ Appliances ------------------------------------------------------------------------------ Lighting ------------------------------------------------------------------------------ Other ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ Please describe in detail any major repairs: ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ Exhibit H CONDITION OF PROPERTY THE OVERALL APPEARANCE OF THE BUILDING(S) IS: Excellent Good Fair Bad THE OVERALL APPEARANCE OF THE GROUNDS IS: Excellent Good Fair Bad EXTERIOR CONDITION (Please Check Appropriate Box) ------------------------------------------------------------------------------ Type of Condition Excellent Good Fair Problems/Comments ------------------------------------------------------------------------------ Signage ------------------------------------------------------------------------------- Parking Lots ------------------------------------------------------------------------------- Office/Storage ------------------------------------------------------------------------------- Equipment ------------------------------------------------------------------------------- Community Building ------------------------------------------------------------------------------- Laundry Room ------------------------------------------------------------------------------- Benches/Playground ------------------------------------------------------------------------------- Lawns, Plantings ------------------------------------------------------------------------------- Drainage, Erosion ------------------------------------------------------------------------------- Carports ------------------------------------------------------------------------------- Fences ------------------------------------------------------------------------------- Walks/Steps/Guardrails ------------------------------------------------------------------------------- Lighting ------------------------------------------------------------------------------- Painting ------------------------------------------------------------------------------- Walls/Foundation ------------------------------------------------------------------------------- Roof/Flashing/Vents ------------------------------------------------------------------------------- Gutters/Splashblocks ------------------------------------------------------------------------------- Balconies/Patios ------------------------------------------------------------------------------- Doors Windows/Screens ------------------------------------------------------------------------------- Elevators ------------------------------------------------------------------------------- INTERIOR CONDITION ------------------------------------------------------------------------------- Stairs ------------------------------------------------------------------------------- Flooring ------------------------------------------------------------------------------- Doors/Cabinets/Hardware ------------------------------------------------------------------------------- Drapes/Blinds ------------------------------------------------------------------------------- Interior Painting ------------------------------------------------------------------------------- Refrig/Stoves/Sinks ------------------------------------------------------------------------------- Bathroom/Tubs/Showers Toilets ------------------------------------------------------------------------------- Exhibit H FINANCIAL STATUS
FINANCIAL INFORMATION AND NOTICES Until all the Obligations have been finally and indefeasibly paid and satisfied in full and the Commitments terminated, unless consent has been obtained in the manner set forth in Section 12.9 hereof, the Borrower will furnish or cause to be furnished to the Administrative Agent and each Lender at its address set forth in Schedule 1, or such other office as may be designated by the Agent or the applicable Lender from time to time:
DISCLOSURE OF FINANCIAL INFORMATION 26.1 The Customer represents and warrants that the financial information disclosed to us in his/its Application is an accurate representation of the Customer’s current financial condition.
26.2 The Customer represents and warrants that the Customer has very carefully considered the portion of the Customer’s assets which the Customer considers to be risk capital.
26.3 The Customer recognizes that risk capital is the amount of money the Customer is willing to put at risk and the loss of it would not, in any way, change the Customer’s lifestyle.
26.4 The Customer agrees to immediately inform us if the Customer’s financial condition changes in such a way to reduce the Customer’s net worth, liquid assets and/or risk capital.
Financial and Business Information The Constituent Companies shall deliver to each holder of a Note that is an Institutional Investor:
(a) Quarterly Statements - within 60 days (or such shorter period as is the earlier of (x) five Business Days after the date the Parent Guarantor’s Quarterly Report on Form 10‑Q (the “Form 10‑Q”) is required to be filed with the SEC (without giving effect to any extension permitted by the SEC) and (y) the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each quarterly fiscal period in each fiscal year of the Parent Guarantor (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of,
(1) a consolidated balance sheet of the Parent Guarantor as at the end of such quarter, and
(2) the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows of the Parent Guarantor, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements and certified by a Senior Financial Officer of the Parent Guarantor as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows in accordance with GAAP, subject to changes resulting from normal year‑end audit adjustments and the absence of footnotes, provided that delivery within the time period specified above of copies of the Parent Guarantor’s Form 10‑Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(a);
(b) Annual Statements - within 120 days (or such shorter period as is the earlier of (x) 15 days after the date the Parent Guarantor’s Annual Report on Form 10‑K (the “Form 10‑K”) is required to be filed with the SEC (without giving effect to any extension permitted by the SEC) and (y) the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of the Parent Guarantor, duplicate copies of,
(1) consolidated and consolidating balance sheets of the Parent Guarantor as at the end of such year, and
(2) the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity and cash flows of the Parent Guarantor for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, provided that the delivery within the time period specified above of the Parent Guarantor’s Form 10‑K for such fiscal year (together with the Parent Guarantor’s annual report to shareholders, if any, prepared pursuant to Rule 14a‑3 under the Exchange Act) prepared in accordance with the requirements therefor and filed with the SEC, shall be deemed to satisfy the requirements of this Section 7.1(b);
Operation of the Business During the period from the date of this Agreement to the Closing Date, the Stockholders shall cause the Company to conduct its operations and the Business in the Ordinary Course of Business and in material compliance with all laws applicable to the Company or any of its properties or assets and, to the extent consistent therewith, use its Reasonable Best Efforts to preserve intact its current business organization, keep its physical assets in good working condition, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall not be impaired in any material respect. Without limiting the generality of the foregoing, prior to the Closing Date, the Company and the Stockholders shall not and shall cause the Company not to, in each case, without the prior written consent of the Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise contemplated by this Agreement, incur any funded indebtedness:
(a) issue or sell, or redeem or repurchase, any stock or other securities of the Company or any warrants, options or other rights to acquire any such stock or other securities (except pursuant to the conversion or exercise of outstanding convertible securities, options or warrants outstanding on the date hereof), or amend any of the terms of (including without limitation the vesting of) any such convertible securities or options or warrants;
(b) except as otherwise contemplated under Section 4.4(h), below, split, combine or reclassify any shares of its capital stock; or, except as may be required to enable Stockholders to pay taxes on the Pre-Tax Profits of the Company through the Closing Date, and except as otherwise contemplated under Section 4.4(h), below, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock;
(c) except in connection with the Required Financing (hereinafter described), create, incur, assume or guaranty any indebtedness for borrowed money (including obligations in respect of capital leases) except in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement; assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or entity; or make any loans, advances or capital contributions to, or investments in, any other person or entity;
(d) enter into, adopt or amend any Employee Benefit Plan or any employment or severance agreement or arrangement or (except for normal increases in the Ordinary Course of Business for employees who are not Affiliates) increase in any manner the compensation or fringe benefits of, or materially modify the employment terms of, its directors, officers or employees, generally or individually, or pay any bonus or other benefit to its directors, officers or employees;
(e) acquire, sell, lease, license or dispose of any assets or property (including without limitation any shares or other equity interests in or securities of the Company or any corporation, partnership, association or other business organization or division thereof), other than purchases and sales of Inventories and other assets in the Ordinary Course of Business;
(f) except in connection with the Required Financing (hereinafter described), mortgage or pledge any of its property or assets (including without limitation any shares or other equity interests in or securities of the Company or any corporation, partnership, association or other business organization or division thereof), or subject any such property or assets to any Security Interest;
(g) discharge or satisfy any Security Interest or pay any obligation or liability other than in the Ordinary Course of Business;
(h) as at the Closing Date, and after giving effect to the declaration or funding of any dividends or distributions to the Stockholders, whether in cash or in property, (A) the combined stockholders’ equity of both the Company and DiscCo shall be not less than $4,000,000, (B) neither the Company nor DiscCo will have an indebtedness in excess of $100,000, and (C) not less than $500,000 of the combined assets of both the Company and DiscCo will be in the form of cash, cash equivalents or immediately marketable securities which is necessary to cover operating expenses of the Company and DiscCo incurred in the ordinary course of business;
(i) amend the charter, by-laws or other organizational documents of the Company;
(j) change in any material respect its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP;
(k) enter into, amend, terminate, take or omit to take any action that would constitute a violation of or default under, or waive any rights under, any material Contract or agreement;
(l) institute or settle any Legal Proceeding;
(m) take any action or fail to take any action permitted by this Agreement with the knowledge that such action or failure to take action would result in (i) any of the representations and warranties of the Company set forth in this Agreement becoming untrue in any material respect or (ii) any of the conditions to the Closing set forth in Article V not being satisfied; or
(n) agree in writing or otherwise to take any of the foregoing actions.
