This excerpt taken from the BKS 8-K filed Oct 1, 2009.
(a) Permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and Registered Public Accounting Firm (once in any 12 month period or, during any Trigger Period, at the Administrative Agent’s reasonable discretion), all at the expense of the Loan Parties and at such reasonable times during normal business hours, upon reasonable advance notice to the Lead Borrower; provided, however, that during a Trigger Period, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours and without advance notice.
(b) After reasonable prior notice from the Administrative Agent, permit the Administrative Agent or professionals (including investment bankers, consultants, accountants, lawyers and appraisers) retained by the Administrative Agent to conduct appraisals, commercial finance examinations and other evaluations, including, without limitation, of (i) the Lead Borrower’s practices in the computation of the Borrowing Base, (ii) the personal property included in the Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals and reserves and (iii) the Real Estate included in the Borrowing Base and related financial information and Environmental Assessments. The Loan Parties shall pay the reasonable and documented fees and out-of-pocket expenses of the Administrative Agent or such professionals for such evaluations and appraisals (A) with respect to (b)(i) and (ii) above (1) other than during a Trigger Period, two (2) appraisals of the Loan Parties’ Inventory and two (2) commercial finance examinations during any calendar year and (2) during a Trigger Period, three (3) appraisals of the Loan Parties’ Inventory and three (3) commercial finance examinations during the calendar year in which such Trigger Period arose, and (B) with respect to (b)(iii) above, if Real Estate is then included in the Borrowing Base, up to one (1) such appraisal of such Eligible Real Estate during any calendar year, (C) all other commercial finance examinations and appraisals with respect to the Collateral (other than Real Estate) and up to one additional appraisal with respect to Eligible Real Estate, in each case undertaken at any time at the request of the Administrative Agent if required by applicable Law and (D) all commercial finance examinations and appraisals deemed necessary by the Administrative Agent and undertaken at the request of the Administrative Agent after the occurrence and the continuation of an Event of Default.
(c) Permit the Administrative Agent, from time to time, to engage an independent engineer or other qualified environmental consultant or expert, reasonably acceptable to the Administrative Agent, at the reasonable expense of the Loan Parties, to undertake Phase I environmental site assessments during the term of this Agreement of the Eligible Real Estate, provided that such assessments may only be undertaken (i) during the continuance of an Event of Default, or (ii) if a Loan Party receives any notice or obtains knowledge of (A) any potential or known material release of any Hazardous Materials at or from any Eligible Real Estate,
notification of which release must be given to any Governmental Authority under any Environmental Law, or notification of which has, in fact, been given to any Governmental Authority, or (B) any material complaint, order, citation or notice with regard to air emissions, water discharges, exposure to Hazardous Materials, or any other environmental or health or safety exposure matter affecting any Loan Party or any Eligible Real Estate from any Person (including, without limitation, the U.S. Environmental Protection Agency). Environmental assessments may include detailed visual inspections of the Eligible Real Estate, including, without limitation, any and all storage areas, storage tanks, drains, dry wells and leaching areas, as well as such other non-invasive investigations or analyses as are reasonably necessary for a determination of the compliance of the Eligible Real Estate and the use and operation thereof with all applicable Environmental Laws; provided, however, that the scope of any assessment undertaken under this provision shall be limited to that which is necessary to investigate the release, complaint, order, citation or notice which prompted the assessment. The Borrowers will, and will cause each of their Subsidiaries to, cooperate with the Administrative Agent and such third parties to enable such assessment to be timely completed in a manner reasonably satisfactory to the Administrative Agent, provided such assessment shall not unreasonably interfere with the ordinary business operations of the Loan Parties, their Subsidiaries or the Eligible Real Property.