indemnity, and any and all rights that would result in Guarantor
being deemed a "creditor" under the United States Bankruptcy Code of Tenant or
any other person or entity. If any payment shall be paid to Guarantor on account
of any subrogation rights, each and every amount so paid shall immediately be
paid to Landlord to be credited and applied upon any of the Guaranteed
Obligations, whether or not then due and payable. Every claim or demand which
Guarantor may have against Tenant shall be fully subordinate to all Guaranteed
Obligations.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01
Representations and Warranties. The representations and
warranties made by Guarantor in the Guarantor's Certificate (a copy of which is
attached hereto as Exhibit B) hereby are incorporated by reference herein (with
all related definitions). Guarantor hereby represents and warrants to Landlord
as provided therein.
SECTION 2.02
FINANCIAL STATEMENTS; BOOKS AND RECORDS.
(A)
GUARANTOR SHALL DELIVER TO LANDLORD AND TO LENDER WITHIN
SEVENTY-FIVE (75) DAYS OF THE CLOSE OF EACH FISCAL YEAR OF GUARANTOR, ANNUAL
AUDITED FINANCIAL STATEMENTS OF GUARANTOR (WHICH MUST INCLUDE TENANT AS PART OF
THE TENANT GROUP) CERTIFIED BY A NATIONALLY RECOGNIZED FIRM OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS. GUARANTOR ALSO SHALL FURNISH TO LANDLORD WITHIN
THIRTY (30) DAYS AFTER THE END OF EACH OF THE THREE (3) REMAINING FISCAL
QUARTERS UNAUDITED FINANCIAL STATEMENTS AND ALL OTHER QUARTERLY REPORTS OF
GUARANTOR, CERTIFIED BY GUARANTOR'S CHIEF FINANCIAL OFFICER, AND ALL FILINGS, IF
ANY, OF FORM 10-K, FORM 10-Q AND OTHER REQUIRED FILINGS WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO THE PROVISIONS OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED, OR ANY OTHER LAW. ALL FINANCIAL STATEMENTS OF GUARANTOR SHALL
BE PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED. ALL ANNUAL FINANCIAL
STATEMENTS SHALL BE ACCOMPANIED (I) BY AN OPINION OF SAID ACCOUNTANTS STATING
THAT (A) THERE ARE NO QUALIFICATIONS AS TO THE SCOPE OF THE AUDIT AND (B) THE
AUDIT WAS PERFORMED IN ACCORDANCE WITH
GAAP AND (II) BY THE AFFIDAVIT OF THE PRESIDENT OR A VICE PRESIDENT OF
GUARANTOR, DATED WITHIN FIVE (5) DAYS OF THE DELIVERY OF SUCH STATEMENT, STATING
THAT (C) THE AFFIANT KNOWS OF NO EVENT OF DEFAULT, OR EVENT WHICH, UPON NOTICE
OR THE PASSAGE OF TIME OR BOTH, WOULD BECOME AN EVENT OF DEFAULT WHICH HAS
OCCURRED AND IS CONTINUING HEREUNDER OR, IF ANY SUCH EVENT HAS OCCURRED AND IS
CONTINUING, SPECIFYING THE NATURE AND PERIOD OF EXISTENCE THEREOF AND WHAT
ACTION GUARANTOR HAS TAKEN OR PROPOSES TO TAKE WITH RESPECT THERETO AND
(D) EXCEPT AS OTHERWISE SPECIFIED IN SUCH AFFIDAVIT, THAT GUARANTOR HAS
FULFILLED ALL OF ITS OBLIGATIONS UNDER THIS GUARANTY WHICH ARE REQUIRED TO BE
FULFILLED ON OR PRIOR TO THE DATE OF SUCH AFFIDAVIT. NOTWITHSTANDING ANY OF THE
FOREGOING TO THE CONTRARY, SO LONG AS THE GUARANTOR IS A PUBLIC COMPANY AND THE
CONSOLIDATED QUARTERLY AND ANNUAL FINANCIALS OF GUARANTOR (WHICH MUST INCLUDE
TENANT AS A PART OF THE TENANT GROUP) THAT GUARANTOR OTHERWISE WOULD BE REQUIRED
HEREINABOVE TO CAUSE