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 and Reporting (a) The Company will maintain true books and records of account in which full and correct entries will be made of all its business transactions pursuant to a system of accounting established and administered in accordance with generally accepted accounting principles consistently applied, and will set aside on its books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied.
(b) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred twenty (120) days thereafter, the Company will furnish each Investor a balance sheet of the Company, as at the end of such fiscal year, and a statement of income and a statement of cash flows of the Company, for such year, all prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be accompanied by a report and opinion thereon by independent public accountants of national standing selected by the Company's Board of Directors.
(c) The Company will furnish each Investor, as soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days thereafter, a balance sheet of the Company as of the end of each such quarterly period, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles, with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made.
(d) So long as an Investor (with its Affiliates) shall own not less than five hundred thousand (500,000) shares of Registrable Securities (as adjusted for stock splits and combinations) (a "MAJOR INVESTOR"), the Company will furnish each such Major Investor (i) at least thirty (30) days prior to the beginning of each fiscal year an annual budget and operating plans for such fiscal year (and as soon as available, any subsequent revisions thereto); and (ii) as soon as practicable after the end of each month, and in any event within twenty (20) days thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and a statement of cash flows of the Company for such month and for the current fiscal year to date, including a comparison to plan figures for such period, prepared in accordance with generally accepted accounting principles consistently applied, with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made.
(e) So long as any Series B Investor (with its Affiliates) owns any shares of Registrable Securities, the Company will furnish to three (3) Investors appointed by Atlas (as designated in writing to the Company)
(i) at least thirty (30) days prior to the beginning of each fiscal year an annual budget and operating plans for such fiscal year (and as soon as available, any subsequent revisions thereto); and (ii) as soon as practicable after the end of each month, and in any event within twenty (20) days thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and a statement of cash flows of the Company for such month and for the current fiscal year to date, including a comparison to plan figures for such period, prepared in accordance with generally accepted accounting principles consistently applied, with the exception that no notes need be attached to such statements and year end audit adjustments may not have been made; provided, however, that after the termination of that certain Consulting Agreement (the "Consulting Agreement") between the Company and Atlas, dated as of April 19, 1999, Investors who are holders of Registrable Securities issued or issuable upon conversion of Series B Stock, or upon exercise of the Warrants, shall only be furnished with balance sheets and statements of income pursuant to this subsection (e).
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.
Covenant to Provide Financial Information and Maintain Sufficient Capital The Administrator shall obtain and maintain the necessary capital to fulfill its obligations under this Agreement and shall remain solvent. The Administrator will report to the Issuer on a semi-annual basis its current and total assets, current and total liabilities, and total equity and the Company intends to include such amounts in its SEC reports.
Access to Company Information (a) During the period from the date of this Agreement to the Effective Time, the Company shall permit representatives of the Parent to have reasonable access (at all reasonable times, and in a manner so as not to interfere with the normal business operations of the Company) to all premises, properties, financial and accounting records, contracts, other records and documents, and personnel, of or pertaining to the Company.
(b) The Parent and each of its Subsidiaries (i) shall treat and hold as confidential any Company Confidential Information (as defined below), (ii) shall not use any of the Company Confidential Information except in connection with this Agreement, and (iii) if this Agreement is terminated for any reason whatsoever, shall return to the Company all tangible embodiments (and all copies) thereof which are in its possession. For purposes of this Agreement, “Company Confidential Information” means any information of the Company that is furnished to the Parent or any of its Subsidiaries by the Company in connection with this Agreement; provided, however, that it shall not include any information (A) which, at the time of disclosure, is available publicly other than as a result of non-permitted disclosure by the Parent, any of its Subsidiaries or their respective directors, officers, or employees, (B) which, after disclosure, becomes available publicly through no fault of the Parent, any of its Subsidiaries or their respective directors, officers, or employees, (C) which the Parent or any of its Subsidiaries knew or to which the Parent or any of its Subsidiaries had access prior to disclosure, as demonstrated by competent evidence, provided that the source of such information is not known by the Parent or any of its Subsidiaries to be bound by a confidentiality obligation to the Company, or (D) which the Parent or any of its Subsidiaries rightfully obtains from a source other than the Company, provided that the source of such information is not known by the Parent or any of its Subsidiaries to be bound by a confidentiality obligation to the Company.
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
Provision of Financial Information Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act, the Company shall, to the extent permitted under the Exchange Act, file with the Commission the annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to such Section 13 or 15(d) if the Company were so subject, such documents to be filed with the Commission on or prior to the respective dates (the “Required Filing Dates”) by which the Company would have been required so to file such documents if the Company were so subject. The Company shall also in any event (x) within 15 days of each Required Filing Date (i) if the Company is not then subject to Section 13 or 15(d) of the Exchange Act, transmit by mail to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which the Company would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections and (y) if filing such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
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:
Other Financial Information Budgets, sales projections, operating plans and other financial information reasonably requested by Bank.
