This LOAN AGREEMENT (this “
Agreement ”) is dated as of April 27, 2009, by
and between BANK OF AMERICA, N.A. , a national banking
association (the “ Bank ”) and GRAND CANYON
EDUCATION, INC. , a Delaware corporation (the “
Borrower ”).
The Borrower has requested that the Bank provide
a Loan in order for the Borrower to purchase the property used by
the Borrower to operate Grand Canyon University. The Bank is
willing to make such a Loan on the terms and conditions set forth
herein.
Therefore, in consideration of the mutual
covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
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1.
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VARIABLE RATE TERM LOAN AMOUNT AND
TERMS
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The Bank agrees
to provide a Loan to the Borrower in the principal amount of
Twenty-Five Million Six Hundred Seventy Five Thousand and no/100
Dollars ($25,675,000.00) (the “ Loan
”).
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1.2
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Single Disbursement of
Loan .
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The Loan shall
be made by a single disbursement upon the Borrower’s
satisfaction of the conditions contained in Article 5
of this Agreement, which the Bank and the Borrower agree will be on
April 28, 2009.
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(a)
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The Borrower will pay accrued
interest on the principal balance of the Loan commencing on
June 1, 2009, and thereafter on the same day of each month,
until payment in full of the Loan, such interest to be computed in
accordance with Section 1.4 .
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(b)
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The Borrower will also make
principal payments in equal monthly installments of One Hundred
Forty Two Thousand Six Hundred Thirty Eight and 89/100 Dollars
($142,638.89) beginning on June 1, 2009 and on the first (1st) day
of each month thereafter. In addition to the foregoing monthly
payments of principal, not later than April 30, 2014 (the
“ Maturity Date ”) the Borrower shall repay to
the Bank the remaining unpaid principal, all accrued and unpaid
interest and all other amounts payable under this Agreement or the
Deed of Trust, as defined in Article 3
below.
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1
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(c)
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Upon not less than ten
(10) banking days irrevocable written notice received by the
Bank from the Borrower, the Borrower may prepay the Loan in full or
in part only on the first (1st) day of the calendar month that is
so noted in such notice. Any such noticed prepayment shall be
unconditionally due on such stated date for such prepayment in the
notice. Such prepayment must be accompanied with (i) the
payment of any termination, reinvestment, or breakage costs
incurred by the Bank if such prepayment is not received on the
first (1st) day of the calendar month that is noted in such
prepayment notice; and (ii) a prepayment fee as
follows:
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Date of
Prepayment
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Percentage of Prepaid
Amount
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2.00
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%
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1.00
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%
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0.50
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%
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Provided that,
if the prepayment is a prepayment in full and made in connection
with either:
(A) a
refinancing transaction, the proceeds of which are used to both
(x) repay the Loan and all other amounts payable to the Bank
in full, and (y) to finance material improvements to the real
property and improvements thereon comprising the Collateral (as
defined below); or
(B) a new
market tax credit financing transaction, the proceeds of which are
used to repay the Loan and all other amounts payable to the Bank in
full;
then a
prepayment fee as follows:
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Date of
Prepayment
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Percentage of Prepaid
Amount
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1.00
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%
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0.50
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%
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0.25
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%
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Provided
further that, if the Bank is either the only lender or is the
primary lender of any financing covered by clause (A) of the
preceding sentence, then no prepayment fee will be
required.
Each such
prepayment will be applied (A) first , to the payment of any
such termination, reinvestment, or breakage fee; (B) second
, to the Prepayment Fee; and then; (C) third , to the most
remote payment of principal due under this Agreement. The Borrower
shall also pay to the Bank, in addition to any late fee or default,
interest on any noticed prepayment that is not timely made, all
costs, expenses, fees and losses incurred by Bank as a result of
such failure, including any termination, reinvestment or breakage
fee.
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(a)
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The interest rate on the unpaid
amount of the Loan shall be a rate per year equal to the BBA LIBOR
Rate (Adjusted Periodically), plus three hundred fifty
(350) basis points.
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(b)
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The interest rate will be adjusted
on the first (1st) day of every calendar month (the “
Adjustment Date ”) and remain fixed until the next
Adjustment Date. If the Adjustment Date in any particular month
would otherwise fall on a day that is not a banking day then, at
the Bank’s option, the Adjustment Date for that particular
calendar month will be the first banking day immediately following
thereafter.
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(c)
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The BBA LIBOR Rate (Adjusted
Periodically) is a rate of interest equal to the rate per annum
equal to the British Bankers Association LIBOR Rate (“ BBA
LIBOR ”), as published by Reuters (or another
commercially available source providing quotations of BBA LIBOR as
selected by the Bank from time to time) as determined for each
Adjustment Date at approximately 11:00 a.m. London time two
(2) London Banking Days prior to the Adjustment Date, for U.S.
Dollar deposits (for delivery on the first day of such interest
period) with a term of one month, as adjusted from time to time in
the Bank’s sole discretion for reserve requirements, deposit
insurance assessment rates and other regulatory costs. If such rate
is not available at such time for any reason or if the Bank
determines in its sole discretion that such rate no longer
accurately reflects its cost of funds, then the rate for that
interest period will be determined by such alternate method as
reasonably selected by the Bank provided that the effect of such
alternative method is to provide for an interest rate that is
generally comparable in market performance and fluctuation as the
BBA LIBOR immediately prior to such rate not being available or not
reflecting the cost of funds. A “ London Banking Day
” is a day on which banks in London are open for business and
dealing in offshore dollars.
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(a)
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Loan Fee . The Borrower agrees to pay a loan
fee in the amount of One Hundred Twenty Eight Thousand Three
Hundred Seventy Five and no/100 Dollars ($128,375.00). This loan
fee shall be paid by the Borrower on the date of this Agreement and
shall be fully paid and non-refundable upon receipt by the
Bank.
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(b)
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Late Fee . The Borrower agrees to pay a late
fee in an amount equal to four percent (4%) of the amount of any
delinquent payment of principal or interest that is more than ten
(10) calendar days late. The imposition and payment of a late
fee shall not constitute a waiver of the Bank’s rights with
respect to the default. This fee shall be in addition to the
accrual of interest at the default rate of interest pursuant to
Section 4.6 below.
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3
The Borrower
agrees to repay the Bank within ten (10) days after request or
invoice for all expenses and costs incurred by the Bank in
connection with the Loan, which may include, but are not limited
to, filing, recording and search fees, appraisal fees, survey fees,
title report fees, title insurance premiums, and documentation
fees.
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2.3
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Reimbursement of Costs and
Expenses .
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(a)
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The Borrower agrees to also
reimburse the Bank for any costs or expenses it incurs in the
preparation of this Agreement, any agreement, document or
instrument required by this Agreement, including, without
limitation, the Deed of Trust, as defined in Article 3
below and any agreement, document or instrument required pursuant
to Article 5 below. Expenses shall include, but are not
limited to, reasonable attorneys’ fees and costs, including
any allocated costs of the Bank’s in-house counsel to the
extent permitted by applicable law.
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(b)
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The Borrower agrees to also
reimburse the Bank for the cost and expense of periodic field
examinations of the Collateral, and appraisals of the Collateral,
at such intervals as the Bank may reasonably require; provided,
however, that so long as there is no Event of Default, Borrower
shall not be required to pay for more than one (1) appraisal
each calendar year following the disbursement of the Loan. The
actions described in this paragraph shall include, without
limitation, the actions taken pursuant to Section 7.23
below, and may be performed by employees of the Bank or by
independent appraisers.
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3.
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DEED OF TRUST AND
COLLATERAL
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The
Borrower’s obligations to the Bank under this Agreement will
be secured by the property rights and interests covered by the
following (the “ Collateral ”):
A Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing
dated as of April 27, 2009 (the “ Deed of Trust
”) which shall cover the approximately 89.6 acres of land
located at 3300 West Camelback Road, Phoenix, Arizona 85017-3030
and the other property, rights and interest described in the Deed
of Trust.
The Deed of
Trust and any other document executed at any time by the Borrower
to secure the Loan are collectively, the “ Collateral
Documents ”.
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4.
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DISBURSEMENTS, PAYMENTS AND
COSTS
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4.1
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Disbursements and
Payments .
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(a)
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Each payment by the Borrower will
be made in U.S. Dollars and immediately available funds by debit to
a deposit account, as described in this Agreement or otherwise
authorized by the Borrower. For payments not made by direct debit,
payments will be made by mail to the address shown on the
Borrower’s statement or at one of the Bank’s banking
centers in Phoenix, Arizona, or at such other banking center
designated by the Bank, or by such other method as may be permitted
or directed by the Bank.
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(b)
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The Bank may honor instructions for
repayments or prepayments given by any one of the individuals
authorized to sign this Loan Agreement or the Deed of Trust on
behalf of the Borrower, or any other individual designated in a
writing delivered to the Bank by any one of such authorized signers
(each an “ Authorized Individual ”).
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4
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(c)
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For any payment under this
Agreement made by debit to a deposit account, the Borrower will
maintain sufficient immediately available funds in the deposit
account to cover such debit. If there are insufficient immediately
available funds in the deposit account on the date the Bank enters
any such debit authorized by this Agreement, the Bank may reverse
the debit.
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(d)
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The disbursement of the Loan by the
Bank and each payment by the Borrower will be evidenced by records
kept by the Bank, and shall be conclusive, absent manifest error.
In addition, the Bank may, at its discretion, require the Borrower
to sign a promissory note to further evidence the Loan, and the
Borrower’s obligation to repay the Loan, plus
interest.
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(e)
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Not later than five
(5) calendar days prior to the date each payment of principal
and interest or any fees, costs or expenses from the Borrower
becomes due (each a “ Due Date ”), the Bank will
mail to the Borrower a statement of the amounts that will be due on
the stated Due Date (the “ Billed Amount ”). The
due date for any payment by Borrower shall not be delayed or
postponed if for any reason (A) Bank does not timely mail any
such statement; or (B) Borrower does not timely receive such
statement. The calculations in each such billing statement will be
made on the assumption that no payments will be made between the
date of the billing statement and the Due Date, and that there will
be no changes in the applicable interest rate. If the Billed Amount
differs from the actual amount due on the stated Due Date (the
“ Accrued Amount ”), the discrepancy will be
treated as follows:
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(i)
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If the Billed Amount is less than
the Accrued Amount, the Billed Amount for the following Due Date
will be increased by the amount of the discrepancy. The Borrower
will not be in default by reason of any such
discrepancy.
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(ii)
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If the Billed Amount is more than
the Accrued Amount, the Billed Amount for the following Due Date
will be decreased by the amount of the discrepancy.
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Regardless of any such discrepancy,
interest will continue to accrue based on the actual amount of
principal outstanding without compounding. Interest shall also
accrue on any fees, costs or expenses that are not paid by the
Borrower upon presentment of the amount to the Borrower. The Bank
will not pay the Borrower interest on any overpayment.
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4.2
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Telephone and Telefax
Authorization.
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(a)
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The Bank may honor telephone,
telefax or e-mail instructions for repayments or prepayments given,
or purported to be given, by any one of the Authorized
Individuals.
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(b)
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The Borrower will fully indemnify
and hold the Bank harmless from all liability, loss, and costs in
connection with any act resulting from telephone, telefax or e-mail
instructions the Bank reasonably believes are made by any
Authorized Individual. This section will survive this
Agreement’s termination, and will benefit the Bank and its
officers, employees, and agents.
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5
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(a)
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The Borrower agrees that on each
Due Date the Bank will debit the Billed Amount from one of
Borrower’s accounts with the Bank as designated in writing by
the Borrower (the “ Designated Account
”).
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Unless
otherwise provided in this Agreement, a banking day is a day other
than a Saturday, Sunday or other day on which commercial banks are
authorized to close, or are in fact closed, in the State of
Arizona, and, if such day relates to amounts bearing interest at an
offshore rate (if any), means any such day on which dealings in
dollar deposits are conducted among banks in the offshore dollar
interbank market. All payments and disbursements which would be due
on a day which is not a banking day will be due on the next banking
day. All payments received on a day which is not a banking day will
be applied to the credit on the next banking day.
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4.5
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Interest Calculation
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Except as
otherwise stated in this Agreement, all interest and fees, if any,
will be computed on the basis of a 360-day year and the actual
number of days elapsed. This results in more interest or a higher
fee than if a 365-day year is used. Installments of principal which
are not paid when due under this Agreement shall continue to bear
interest until paid.
Following the
occurrence of an Event of Default or after maturity of or after
judgment has been rendered on any obligation under this Agreement,
all amounts outstanding under this Agreement, including any
(i) interest; or (ii) fees, costs or expenses which are
not paid within two (2) business days after the date when due, will
at the option of the Bank bear interest at a rate which is six
hundred (600) basis points higher than the Interest Rate from
such date until the date received by Bank. This may result in the
compounding of interest. This will not constitute a waiver of any
default and shall be in addition to the late fee pursuant to
Section 2.1(b) .
Before the Bank
is required to make the Loan pursuant to this Agreement, it must
receive any documents and other items it may reasonably require, in
form and content acceptable to the Bank, including any items
specifically listed below.
Evidence that
the execution, delivery and performance by the Borrower of this
Agreement and any instrument or agreement required under this
Agreement have been duly authorized.
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5.2
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Governing Documents
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A copy of the
Borrower’s organizational and operating documents.
Signed,
acknowledged and properly recorded (which recording may be
contemporaneous with the closing of the Loan pursuant to an escrow
to close the Loan) original Deed of Trust.
An ALTA
lender’s title insurance policy (on a form acceptable to the
Bank and from a title company acceptable to the Bank), for Twenty
Five Million Six Hundred Seventy Five and no/100 Dollars
($25,675,000.00), insuring the Bank’s lien pursuant to the
Deed of Trust, with only such exceptions and exclusions as may be
approved by the Bank and together with such endorsements as the
Bank may require (the “ Title Policy
”).
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5.5
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Payment of Fees, Costs and
Expenses .
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Payment of all
fees and other amounts due and owing to the Bank, including without
limitation payment of all accrued and unpaid expenses incurred by
the Bank as required by the Section 2.3 entitled “
Reimbursement of Costs and Expenses .” The payment of
all Reimbursement Costs accruing prior to the date of this
Agreement shall be set forth in the Closing Statement referenced in
Section 7.1 and shall be paid out of the proceeds of
the Loan pursuant thereto.
Certificates of
good standing for the Borrower from the State of Delaware and the
State of Arizona.
A written
opinion from the Borrower’s legal counsel, covering such
matters as valid corporate existence, authority to borrow,
confirmation that entering into this Agreement will not cause a
violation of any other lending agreement, and any other matters the
Bank may require. The legal counsel and the terms of the opinion
must be acceptable to the Bank.
Evidence of
insurance coverage, as required pursuant to either (i)
Section 7.14 of this Agreement or (ii) the
Collateral Documents.
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5.9
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Environmental
Information .
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(i)
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Phase 1 . An environmental Phase 1 site
assessment prepared by a qualified third party consultant approved
by the Bank concerning any potential toxic or hazardous condition
with respect to the real property collateral, together with a
certification signed by the Borrower regarding the environmental
information provided to the Bank (the “ Phase 1
”); and
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(ii)
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Lead Safe . Borrower shall deliver to the Bank
documentation evidencing that the property covered by the Deed of
Trust is operated in a lead safe manner; and
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(iii)
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Asbestos Plan
. Borrower shall
deliver to the Bank a copy of the Borrower’s Asbestos
Operations and Maintenance Plan and the Bank shall have determined
such Plan to be acceptable.
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Delivery of an
Aerial Survey covering the real property covered by the Deed of
Trust to the Bank and the Title Company.
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5.11
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Other Required
Documentation .
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(a)
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Fully executed Purchase and Sale
Agreement and all related documents in connection with the
transaction (the “ Purchase Transaction ”) among
Borrower, on the one hand, and Spirit Master Funding, LLC and
Spirit Management Company (collectively, “ Spirit
”), on the other hand (the “ Purchase and Sale
Agreement ”) regarding the real property covered by the
Deed of Trust, including, without limitation, the proper recording
of a Warranty Deed in favor of the Borrower for the real property
covered by the Deed of Trust.
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(b)
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All documents and certificates set
forth on the Closing Checklist delivered to Borrower from the legal
counsel of the Bank regarding the Loan (the “ Closing
Checklist ”).
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(c)
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All documents and certificates
required by the Title Insurance Company as a condition to its
issuance of the Title Policy, and all endorsements
thereto.
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(d)
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An Appraisal, by an MAI Appraiser
selected and retained by the Bank, of the real property covered by
the Deed of Trust in a form acceptable to the Bank, and disclosing
a current appraised value of not less than Thirty Nine Million Five
Hundred Thousand and no/100 Dollars ($39,500,000.00).
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6.
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REPRESENTATIONS AND
WARRANTIES
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When the
Borrower signs this Agreement, and until the Bank is repaid in
full, the Borrower makes the following representations and
warranties as of and on each day the Loan remains
outstanding.
Borrower is
duly formed and validly existing under the laws of the State of
Delaware.
8
This Agreement,
and any instrument or agreement required hereunder, are within the
Borrower’s corporate powers, have been duly authorized, and
do not conflict with any of its organizational or governing
documents.
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6.3
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Enforceable Agreement and Deed of
Trust .
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This Agreement
and the Collateral Documents are each a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in
accordance with their respective terms. In addition, any instrument
or agreement required under this Agreement, when executed and
delivered, will be similarly legal, valid, binding and
enforceable.
In each state
in which the Borrower does business, it is properly licensed, in
good standing, and, where required, in compliance with fictitious
name statutes, except where such failure to be so licensed, in good
standing and in compliance has not and would not reasonably be
expected to have a material adverse effect on the Borrower or its
business.
This Agreement
does not conflict with any law, agreement, or obligation by which
the Borrower is bound.
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6.6
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Financial Information
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All financial
and other information that has been or will be supplied to the Bank
is sufficiently complete to give the Bank accurate and complete
knowledge, in all material respects, of the Borrower’s
financial condition, including all material contingent liabilities.
Since the date of the most recent financial statement provided to
the Bank, there has been no material adverse change in the business
condition (financial or otherwise), operations, properties or
prospects of the Borrower.
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As of the date
of this Agreement, there is no lawsuit, tax claim or other dispute
pending, overtly threatened in writing or, to Borrower’s
actual knowledge, otherwise threatened against the Borrower (or any
of the Borrower’s property) which, if lost, would materially
impair the Borrower’s financial condition or ability to repay
the Loan, except as have been disclosed in writing to the Bank or
as have otherwise been disclosed by the Borrower in any periodic
report or other filing made with the Securities and Exchange
Commission (the “ SEC ”) under the Securities
Act of 1933, as amended (the “ Securities Act ”)
or the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) (collectively, the “ SEC
Reports ”), or if occurring after the date of this
Agreement, is promptly disclosed to the Bank pursuant to
Section 7.13 .
As of the time
the Deed of Trust is recorded with the Recorder of Maricopa County,
Arizona, the Collateral is owned by the Borrower free of any title
defects or any liens, except those which are disclosed in the Title
Policy referenced in Section 5.4 above or by a UCC
financing statement search.
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6.9
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Permits, Franchises
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The Borrower
possesses all permits, memberships, franchises, contracts and
licenses required and all trademark rights, trade name rights,
patent rights, copyrights, and fictitious name rights necessary to
enable it to conduct the business in which it is now engaged except
to the extent Borrower’s failure to possess such permits or
other rights has not resulted or would not reasonably be expected
to result in a material adverse effect on Borrower or its
business.
As of the date
of this Agreement, the Borrower is not in default on any obligation
for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or
obligation.
The Borrower
has no knowledge of any pending assessments or adjustments in an
amount exceeding One Hundred Thousand Dollars and no/100 Dollars
($100,000.00) of its income tax for any year and all taxes due have
been paid, except as have been disclosed in writing to the Bank, or
if the Borrower obtains knowledge of such assessment or adjustment
after the date of this Agreement, except as is promptly disclosed
to the Bank in writing.
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6.12
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No Event of Default
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There is no
event which is, or with notice or lapse of time or both would be,
an Event of Default under this Agreement or any of the Collateral
Documents.
The Borrower
has obtained, and maintains in effect, the insurance coverage
required in any of (i) Section 7.14 of this Agreement,
or (ii) pursuant to the Collateral Documents.
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(a)
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Each Plan (other than a
multiemployer plan) is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or
state law. Each Plan has received a favorable determination letter
from the IRS and to the best knowledge of the Borrower, nothing has
occurred which would cause the loss of such qualification. The
Borrower has fulfilled its obligations, if any, under the minimum
funding standards of ERISA and the Code with respect to each Plan,
and has not incurred any liability with respect to any Plan under
Title IV of ERISA.
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(b)
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There are no claims, lawsuits or
actions (including by any governmental authority), and there has
been no prohibited transaction or violation of the fiduciary
responsibility rules, with respect to any Plan which has resulted
or could reasonably be expected to result in a material adverse
effect on the Borrower or its business.
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(c)
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With respect to any Plan subject to
Title IV of ERISA:
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(i)
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No reportable event has occurred
under Section 4043(c) of ERISA for which the PBGC requires 30-day
notice.
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(ii)
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No action by the Borrower or any
ERISA Affiliate to terminate or withdraw from any Plan has been
taken and no notice of intent to terminate a Plan has been filed
under Section 4041 of ERISA.
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(iii)
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No termination proceeding has been
commenced with respect to a Plan under Section 4042 of ERISA,
and no event has occurred or condition exists which might
constitute grounds for the commencement of such a
proceeding.
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(d)
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The following terms have the
meanings indicated for purposes of this Agreement:
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(i)
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“ Code ” means
the Internal Revenue Code of 1986, as amended from time to
time.
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(ii)
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“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended
from time to time.
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(iii)
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“ ERISA Affiliate
” means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code.
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(iv)
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“ PBGC ” means
the Pension Benefit Guaranty Corporation.
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(v)
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“ Plan ” means a
pension, profit-sharing, or stock bonus plan intended to qualify
under Section 401(a) of the Code, maintained or contributed to by
the Borrower or any ERISA Affiliate, including any multiemployer
plan within the meaning of Section 4001(a)(3) of ERISA.
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6.15
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Location of Borrower
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As of the date
of this Agreement, the place of business of the Borrower and its
chief executive office are each located at 3300 West Camelback
Road, Phoenix, Arizona 85017-3030.
The
Borrower’s Survey Certificate listed on the Closing Checklist
and delivered to the Bank is true and correct in all material
respects.
The Borrower
agrees that until the Bank is repaid in full:
To use and
apply the proceeds of the Loan only according to the Closing
Statement dated April 27, 2009 (the “ Closing
Statement ”) in connection with the closing of the
Purchase Transaction.
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7.2
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Financial Information
.
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To provide the
following financial statements and other information; provided,
that for so long as the Borrower is required to file SEC Reports,
the Borrower shall be deemed to have satisfied its obligation to
provide such financial statements and other information to the
extent such financial statements and other information are filed by
the Borrower on the SEC’s EDGAR filing system and a copy of
each such filing is delivered to the Bank within three
(3) calendar days of such filing.
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(a)
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Copies of each Form 10-K Annual
Report for Borrower filed with the SEC. If the Borrower does not
timely file, or is not required to file with the SEC, a Form 10-K
Annual Report for Borrower for any fiscal year, then, within ninety
(90) days of each fiscal year end of the Borrower, the
Borrower shall provide to Bank the annual financial statements of
Borrower, certified and dated by an authorized financial officer.
The financial statements delivered separately or included in such
Form 10-K Annual Reports must be (i) audited by a Certified
Public Accountant acceptable to the Bank; (ii) prepared on a
consolidated basis (if applicable); and (iii) include a
balance sheet, statement of income and statement of cash
flow.
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(b)
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Copies of each Form 10-Q Quarterly
Report for Borrower filed with the SEC. If the Borrower does not
timely file, or is not required to file with the SEC, a Form 10-Q
Quarterly Report for Borrower for any fiscal quarter, then, within
sixty (60) days of each fiscal quarter (other than the fiscal
quarter that ends with the fiscal year) the Borrower shall provide
to Bank the quarterly financial statements of Borrower, certified
and dated by an authorized financial officer. The financial
statements delivered separately or included in such Form 10-Q
Quarterly Report must be, (i) certified and dated by an
authorized financial officer; (ii) prepared on a consolidated
basis (if applicable); and (iii) include a balance sheet,
statement of income and statement of cash flow.
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(c)
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Copies of each Form 8-K Current
Report for Borrower filed with the SEC.
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(d)
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Promptly, upon sending or receipt,
copies of any management letters and correspondence relating to
management letters, sent or received by the Borrower to or from the
Borrower’s auditor. If no management letter is prepared, the
Bank may, in its discretion, request a letter from such auditor
stating that no deficiencies were noted that would otherwise be
addressed in a management letter.
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(e)
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Consolidated Financial Projections
covering a three (3) year time period and specifying the
assumptions used in creating the projections (the “
Consolidated Financial Projections ”). The
Consolidated Financial Projections shall be provided to the Bank no
less often than annually, and within seventy-five (75) days
after the end of each fiscal year.
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(f)
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Promptly upon the Bank’s
request, such other books, records, statements, lists of property
and accounts, budgets, forecasts, pipeline reports or other reports
as the Bank may reasonably request.
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(g)
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Within sixty (60) days of the
end of each fiscal quarter (other than a fiscal quarter that ends
on last day of the fiscal year), a compliance certificate of the
Borrower, signed by an authorized financial officer in the form of
Exhibit 7.2(g) , which shall include, without
limitation, (i) the information and computations (in
sufficient detail) to establish compliance with the financial
covenants set forth in Sections 7.3 , 7.4 , and
7.5 at the end of the period covered by the financial
statements then being furnished for such fiscal quarter, and
(ii) a statement whether there existed as of the date of
either such financial statements or the date of the certificate,
any default under this Agreement, and if any such default exists,
specifying the nature thereof and the action the Borrower is taking
and proposes to take with respect thereto (the “ Quarterly
Compliance Certificate ”). The form or delivery of any
Quarterly Compliance Certificate does not change the terms of any
financial or other covenant contained in this Agreement.
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(h)
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Within ninety (90) days of the
end of each fiscal year, a compliance certificate of the Borrower,
signed by an authorized financial officer in the form of
Exhibit 7.2(h) , which shall include, without
limitation, (i) the information and computations (in
sufficient detail) to establish compliance with the financial
covenants set forth in Sections 7.3 , 7.4 , and
7.5 at the end of the period covered by the financial
statements then being furnished for such fisca
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