Common use of Financial Statements; Net Worth Clause in Contracts

Financial Statements; Net Worth. Indemnitor hereby agrees, as a material inducement to Lender to make the Loan to Borrower, to furnish, from time to time to Lender promptly upon demand by Lender current and dated financial statements detailing the assets and liabilities of Indemnitor certified by Indemnitor, in form and substance reasonably acceptable to Lender. Indemnitor hereby warrants and represents unto Lender that any and all balance sheets, net worth statements and other financial data which have heretofore been given or may hereafter be given to Lender with respect to Indemnitor did or will at the time of such delivery fairly and accurately present the financial condition of Indemnitor. IMH hereby agrees, for the benefit of Lender: (i) IMH shall not, without the prior written approval of Lender which may be given or Exhibit 10.9 withheld in Lender’s sole and absolute discretion, enter into, effect or permit by operation of law or otherwise, any merger, reorganization, consolidation, dissolution or liquidation affecting IMH, or any change in ownership of IMH, or any sale of any assets of IMH (a "Transfer Event"), which would result in IMH failing to have, immediately after the effective date of such Transfer Event, a minimum aggregate net worth of at least Fifty Million Dollars ($50,000,000) (the "Minimum Net Worth") with not less than $4,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2015 calendar year and $5,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2016 calendar year (“Minimum Liquidity”); (ii) IMH shall maintain, from and after the date of execution of this Agreement and thereafter throughout the term of the Loan, a net worth equal to the Minimum Net Worth and the Minimum Liquidity in the foregoing amounts, as evidenced by financial statements certified by IMH; IMH agrees that such financial statements shall be prepared for IMH as required by IMH’s public reporting obligations and delivered to Lender within ninety (90) days following the end of each such calendar year, together with a certificate from IMH that no material adverse change in the financial statements and net worth of IMH has occurred since the date of such statement; and (iii) IMH shall notify Lender within ten (10) days after IMH becomes aware that IMH has failed to maintain the Minimum Net Worth and/or Minimum Liquidity as set forth above. For the purposes hereof, “net worth” shall be determined based upon the (1) fair market value of all of the assets of IMH (excluding intangible assets (determined in conformity with generally accepted accounting principles as of the date of the applicable financial report (“GAAP”)) and excluded intangible assets shall include goodwill, intellectual property, licenses, organizational costs, deferred amounts, covenants not to compete, unearned income, restricted funds, investments in subsidiaries or other Affiliates (as defined in the Loan Agreement), intercompany receivables and accumulated depreciation, less (2) all liabilities of IMH (as determined in accordance with GAAP). Any breach of this Section 5(f) shall be deemed an Event of Default under the Loan Documents.

Financial Statements; Net Worth. Indemnitor hereby agrees, as a material inducement to Lender to make the Loan to Borrower, to furnish, from time to time to Lender promptly upon demand by Lender current and dated financial statements detailing the assets and liabilities of Indemnitor certified by Indemnitor, in form and substance reasonably acceptable to Lender. Indemnitor hereby warrants and represents unto Lender that any and all balance sheets, net worth statements and other financial data which have heretofore been given or may hereafter be given to Lender with respect to Indemnitor did or will at the time of such delivery fairly and accurately present the financial condition of Indemnitor. IMH Indemnitor hereby agrees, for the benefit of Lender: (i) IMH shall notNo Indemnitor shall, without the prior written approval of Lender which may be given or Exhibit 10.9 withheld in Lender’s sole and absolute discretion, enter into, effect or permit by operation of law or otherwise, any merger, reorganization, consolidation, dissolution or liquidation affecting IMHIndemnitor, or any change in ownership of IMHIndemnitor, or any sale of any assets of IMH Indemnitor (a "Transfer Event"), which would result in IMH Indemnitor failing to have, immediately after the effective date of such Transfer Event, a minimum aggregate net worth of at least Fifty Million Dollars ($50,000,000) (the "Minimum Net Worth") with not less than $4,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2015 calendar year and $5,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2016 calendar year (“Minimum Liquidity”); (ii) IMH Indemnitor shall maintain, from and after the date of execution of this Agreement and thereafter throughout the term of the Loan, a net worth equal to the Minimum Net Worth and the Minimum Liquidity in the foregoing amounts, as evidenced by financial statements certified by IMHIndemnitor; IMH Indemnitor agrees that such financial statements shall be prepared for IMH Indemnitor as required by IMHIndemnitor’s public reporting obligations and delivered to Lender within ninety (90) days following the end of each such calendar year, together with a certificate from IMH Indemnitor that no material adverse change in the financial statements and net worth of IMH Indemnitor has occurred since the date of such statement; and (iii) IMH Indemnitor shall notify Lender within ten (10) days after IMH Indemnitor becomes aware that IMH Indemnitor has failed to maintain the Minimum Net Worth and/or Minimum Liquidity as set forth above. For the purposes hereof, “net worth” shall be determined based upon the (1) fair market value of all of the assets of IMH Indemnitor (excluding intangible assets (determined in conformity with generally accepted accounting principles as of the date of the applicable financial report (“GAAP”)) and excluded intangible assets shall include goodwill, intellectual property, licenses, organizational costs, deferred amounts, covenants not to compete, unearned income, restricted funds, investments in subsidiaries or other Affiliates (as defined in the Loan Agreement), intercompany receivables and accumulated depreciation, less (2) all liabilities of IMH Indemnitor (as determined in accordance with GAAP). Any breach of this Section 5(f) shall be deemed an Event of Default under the Loan Documents.

Financial Statements; Net Worth. Indemnitor hereby agrees, as a material inducement to Lender to make the Loan to Borrower, to furnish, from time to time to Lender promptly upon demand by Lender current and dated financial statements detailing the assets and liabilities of Indemnitor certified by Indemnitor, in form and substance reasonably acceptable to Lender. Indemnitor hereby warrants and represents unto Lender that any and all balance sheets, net worth statements and other financial data which have heretofore been given or may hereafter be given to Lender with respect to Indemnitor did or will at the time of such delivery fairly and accurately present the financial condition of Indemnitor. IMH Indemnitor hereby agrees, for the benefit of Lender: (i) IMH shall notNo Indemnitor shall, without the prior written approval of Lender which may be given or Exhibit 10.9 withheld in Lender’s sole and absolute discretion, enter into, effect or permit by operation of law or otherwise, any merger, reorganization, consolidation, dissolution or liquidation affecting IMHIndemnitor, or any change in ownership of IMHIndemnitor, or any sale of any assets of IMH Indemnitor (a "Transfer Event"), which would result in IMH Indemnitor failing to have, immediately after the effective date of such Transfer Event, a minimum aggregate net worth of at least Fifty Million Dollars ($50,000,000) (the "Minimum Net Worth") with not less than $4,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2015 calendar year and $5,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2016 calendar year (“Minimum Liquidity”); (ii) IMH Indemnitor shall maintain, from and after the date of execution of this Agreement and thereafter throughout the term of the Loan, a net worth equal to the Minimum Net Worth and the Minimum Liquidity in the foregoing amounts, as evidenced by financial statements certified by IMHIndemnitor; IMH Indemnitor agrees that such financial statements shall be prepared for IMH Indemnitor as required by IMHIndemnitor’s public reporting obligations and delivered to Lender within ninety (90) days following the end of each such calendar year, together with a certificate from IMH Indemnitor that no material adverse change in the financial statements and net worth of IMH Indemnitor has occurred since the date of such statement; and (iii) IMH Indemnitor shall notify Lender within ten (10) days after IMH Indemnitor becomes aware that IMH Indemnitor has failed to maintain the Minimum Net Worth and/or Minimum Liquidity as set forth above. For the purposes hereof, “net worth” shall be determined based upon the (1) fair market value of all of the assets of IMH Indemnitor (excluding intangible assets (determined in conformity with generally accepted accounting principles as of the date of the applicable financial report (“GAAP”)) and excluded intangible assets shall include goodwill, intellectual property, licenses, organizational costs, deferred amounts, covenants not to compete, unearned income, restricted funds, investments in subsidiaries or other Affiliates (as defined in the Loan Agreement), intercompany receivables and accumulated depreciation, less (2) all liabilities of IMH Indemnitor (as determined in accordance with GAAP). Any breach of this Section 5(f) shall be deemed an Event of Default under the Loan Documents.

Financial Statements; Net Worth. Indemnitor Guarantor hereby agrees, as a material inducement to Lender to make consent to the assignment and assumption of the Loan to Borrower, to furnish, from time to time to Lender promptly upon within thirty (30) days of demand by Lender Lender, but not more frequently than once per calendar quarter unless an Event of Default shall exist, (1) current and dated financial statements detailing the assets and liabilities of Indemnitor Guarantor certified by IndemnitorGuarantor, in form and substance reasonably acceptable to Lender, together with a certificate from Guarantor that no material adverse change in the financial statement and net worth of Guarantor has occurred since the date of such statement, and (2) copies of the most recently filed tax returns of Guarantor. Indemnitor Guarantor hereby warrants and represents unto Lender that any and all balance sheets, net worth statements and other financial data which have heretofore been given or may hereafter be given to Lender with respect to Indemnitor Guarantor did or will at the time of such delivery fairly and accurately present in all material respects the financial condition of IndemnitorGuarantor. IMH Guarantor hereby agrees, for the benefit of Lender: (i) IMH shall not, without the prior written approval of Lender which may be given or Exhibit 10.9 withheld in Lender’s sole and absolute discretion, enter into, effect or permit by operation of law or otherwise, any merger, reorganization, consolidation, dissolution or liquidation affecting IMH, or any change in ownership of IMH, or any sale of any assets of IMH (a "Transfer Event"), which would result in IMH failing to have, immediately after the effective date of such Transfer Event, a minimum aggregate net worth of at least Fifty Million Dollars ($50,000,000) (the "Minimum Net Worth") with not less than $4,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2015 calendar year and $5,000,000 of such Minimum Net Worth consisting of cash and cash equivalents at all times during the 2016 calendar year (“Minimum Liquidity”); (ii) IMH shall maintain, from and after the date of execution of this Agreement and thereafter throughout the term of the Loan, a net worth equal to of at least Five Million Dollars ($5,000,000) (Two Hundred Fifty Thousand Dollars ($250,000) of which shall at all times during the term of the Loan be held in cash and/or marketable securities or be available for immediate draw under Guarantor’s credit line) in the aggregate (the "Minimum Net Worth and the Minimum Liquidity in the foregoing amountsWorth"), as evidenced by tax returns and financial statements certified by IMHGuarantor; IMH agrees that (ii) to cause such financial statements shall for Guarantor to be prepared for IMH as required by IMH’s public reporting obligations each calendar year commencing with the calendar year 2014 and delivered to Lender within ninety (90) days promptly following the end of each such calendar year, together with a certificate from IMH Guarantor that no material adverse change in the financial statements and net worth of IMH Guarantor has occurred since the date of such statement; and (iii) IMH shall to notify Lender within ten (10) days after IMH Guarantor becomes aware that IMH Guarantor has failed to maintain the Minimum Net Worth and/or Minimum Liquidity as set forth above. For the purposes hereof, “net worth” shall be determined based upon the (1) fair market value of all of the assets of IMH (excluding intangible assets (determined in conformity with generally accepted accounting principles as of the date of the applicable financial report (“GAAP”)) and excluded intangible assets shall include goodwill, intellectual property, licenses, organizational costs, deferred amounts, covenants not to compete, unearned income, restricted funds, investments in subsidiaries or other Affiliates (as defined in the Loan Agreement), intercompany receivables and accumulated depreciation, less (2) all liabilities of IMH (as determined in accordance with GAAP). Any breach of this Section 5(f) shall be deemed an Event of Default under the Loan DocumentsSecurity Instrument; provided, however, that the failure to maintain the Minimum Net Worth set forth above shall not give rise to an Event of Default if, within thirty (30) days after Gurantor fails to maintain such Minimum Net Worth, Guarantor replaces any existing Guarantor with a new guarantor or adds a new guarantor(s) (in each case individually and colelctively referred to herein as, a “Replacement Guarantor”), which Replacement Guarantor shall (i) have a net worth, which together with the net worth of the other Guarantor(s) is equal to or greater than the Minimum Net Worth in the aggregate, as evidenced by financial statements certified by such Replacement Guarantor, (ii) has the reputation and standing in the community as of the date of such replacement or addition contemplated herein, that is at least equal to the reputation and standing of the existing Guarantor as of the effective date of this Agreement and (iii) be otherwise satisfactory to Lender in its sole but reasonable discretion.