AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstanding: 6.1 Furnish or cause to be furnished to the Bank the following, each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete: 6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.
Appears in 4 contracts
Samples: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstanding:
6.1 Furnish or cause to be furnished to the Bank the following, each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of BorrowerBxxxxxxx's business and assets and to examine the books, records and assets of every kind and description of Borrower, at BorrowerBxxxxxxx's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition.
6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as BorrowerBxxxxxxx's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.
Appears in 2 contracts
Samples: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstandingfollows:
6.1 Furnish or cause A. Borrower shall furnish Bank monthly financial statements (i.e., consolidated balance sheets and consolidated income statements) no later than thirty (30) days subsequent to be furnished to each month's end for such month. Together with the Bank monthly financial statements, Borrower shall provide a report identifying all the following, each of banks through which shall be in form and substance satisfactory to the BankBorrower is then issuing commercial paper, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 principal amount of commercial paper then outstanding issued through each bank. Within one hundred twenty ninety (12090) days after the end of each calendar during the term fiscal year of Borrower, Bank shall be provided with an audited income statement for such year and an audited balance sheet as of the Line end of Creditsuch year. All statements are to be prepared in accordance with generally accepted principles of auditing and accounting applied on a basis consistent with the accounting practices of Borrower reflected in the audited financial statements for the preceding fiscal year, and year end statements are to be certified without material qualification by Price Waterhouse, by any other "big six" national accounting firm, or by any independent certified public accountants of recognized standing selected by Borrower and acceptable to Bank. Borrower shall also furnish to Bank all other financial statements reasonably requested by Bank. Borrower shall also furnish to Bank copies of (i) annual federal income tax all financial statements, reports and returns of Borroweras it shall send to its stockholders, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Creditall regular, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole periodic, or in part by Borrower special reports (including but not limited to the Property), (ii) semi-annual operating reports on Form N-SAR and amendments to its registration statements on Form N-5) which it is or may be required to file with the PropertySecurities & Exchange Commission or any governmental department, bureau, commission or agency succeeding to the functions of the Securities & Exchange Commission, and (iii) an updated rent roll all examination reports of its affairs which it shall receive from the PropertySBA; and
6.1.3 Promptly all of which documents shall be delivered to Bank forthwith as and in form satisfactory to Bankwhen sent, such other information regarding the operations filed, or financial condition of Borrower as received by Borrower. Bank may reasonably request from time at any time, and without notice to timeor consent of Borrower, deliver to any participant in the loans which are the subject of this Agreement, copies of all financial statements, reports, or any other documents delivered to Bank hereunder.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times riskB. Borrower shall keep proper books of record and accounts and, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to upon application, give any representative of Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrenceaccess during normal business hours to, and Bank shall be named as additional insured on permit him or her to examine, any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at documents in Borrower's reasonable expense at all reasonable timespossession relating to the financial affairs of Borrower and to inspect any of its properties.
6.5 Promptly notify C. Together with each of the monthly financial statements and the year-end audited financial statements to be provided pursuant to section 6.A. above, Borrower shall also furnish to Bank a certificate signed by its President or Chief Financial Officer stating that he or she has no knowledge of any condition events of default which have occurred under this Agreement or event of any matters which constitutes, or would constitute with the passage of time or giving constitute an event of notice or both, a default under this Agreementhereunder, or the Loan and Security Documents if he or any other document or instrument issued in connection herewith, and promptly notify Bank she shall have obtained knowledge of any changes such default or potential default he or she shall disclose in its financial condition which, individually such statement the default or cumulatively, may result in a material adverse change in its financial conditionpotential default and the nature thereof. Each such certificate shall be dated as of the last day of the month or year for which it is submitted.
6.6 Maintain D. Borrower shall maintain all insurable property, real and personal, owned by it insured at all times against loss or damage by fire or other normally insured hazards through a responsible insurance carrier selected by it in such amounts and to the extent of the coverage as is customary for companies engaged in similar businesses and in similar locations, but in no event shall said insurance be less than that which Bank, in good standing faith, believes is sufficient and adequate to protect the operating value of the property of Borrower. Borrower shall also carry insurance to cover its corporate existence and its status interest as a foreign corporation qualified to do business mortgagee in those jurisdictions where it is required the property securing the Third Party Loans to be qualifiedeffective in the event of any failure of the owner of such property to carry property insurance with respect thereto. The Collateral Agent (used herein as defined in the Intercreditor Agreement) shall be named as secured party loss payee in all such policies. Copies of all such insurance policies shall be delivered to Bank.
6.7 If it E. Borrower shall now or hereafter maintain an employee benefit plan subject keep the properties that are material to the Employee Retirement Income Security Act operation of 1974 (hereinafter "ERISA")its business, promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; whether owned or leased, in good condition, repair and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISAworking order.
6.8 At any time F. Borrower shall duly pay and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or discharge all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all lawful taxes, assessments and governmental charges upon it or relating against its properties prior to its incomethe date on which penalties are attached thereto, or unless and to the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges extent only that the Loan will same shall be placed contested in good faith and by appropriate proceedings by the Borrower and provided Borrower has established appropriate reserves for the payment of said taxes in accordance with generally accepted accounting practices.
G. Borrower shall do all things necessary to maintain its corporate existence, to preserve and keep in full force and effect its rights and franchises necessary to continue its businesses, and to comply with all applicable laws, regulations and ordinances (including without limitation any applicable state or federal securities laws) with respect to which the failure to comply would have a material adverse effect on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the H. Borrower shall pay to Bank, upon demand, all reasonable charges and retain expenses incurred by Bank as Borrowerfor attorney's main bank fees and expenses of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers litigation, in seeking relief from the Operating Account automatic stay or any other bankruptcy proceedings, or in connection with or in any way related to make any and all payments required Bank's relationship with Borrower, with respect to be made the transactions contemplated by Borrower this Agreement, whether hereunder or otherwise, including without limitation those incurred or expended in connection with the Line preparation of this Agreement or any amendment hereto, extension of the Credit includingFacility hereunder, and the protection or enforcement of Bank's rights hereunder. In addition thereto, Borrower shall pay to Bank all reasonable charges and expenses incurred by Bank, of every kind or description, arising subsequent to the occurrence of any event of default, including but not limited toto reasonable attorneys fees and expenses of litigation.
I. With respect to each of its Plans, monthly payments of principal and interest if any, under the Line of Credit NoteEmployee Retirement Income Security Act ("ERISA") and the Internal Revenue Code (the "Code"), late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related Borrower represents and warrants that:
1. all funding requirements have been met and will continue to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested met on an annual basis at basis;
2. no "prohibited transactions" have occurred and that none of the end transactions which are the subject of each fiscal year this Agreement constitute prohibited transactions under the rulings or regulations of ERISA or the Code;
3. all such Plans are and will continue to be qualified Plans; and
4. the Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicablehas complied with, and failure will continue to satisfy comply with, all reporting and disclosure requirements under ERISA, the foregoing covenant shall not be deemed a defaultCode, and the applicable rulings and regulations with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Creditfailure to so comply would have a material adverse effect on the Borrower.
6.12 Maintain at all times a J. Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis maintain its primary operating account at the end of each fiscal year of Bank or with an Additional Lender.
K. Borrower beginning with shall indemnify, defend and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicablehold Bank, and failure to satisfy the foregoing covenant shall not be deemed a defaultits officers, with respect directors, employees, and agents, harmless from and against all claims, injury, damage, loss, costs (including attorneys' fees and costs) and liability of any and every kind to any fiscal year persons or property by reason of (i) the breach by Borrower of any representation or warranty herein or in which any other Loan Document, (ii) the failure by Borrower has not borrowed to fulfill any Advance obligation under this Agreement or under any other Loan Document, or (iii) any other matter relating to, or action taken by Bank in connection with, the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined Facility, unless caused by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event gross negligence or willful misconduct of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.
Appears in 1 contract
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstandingfollows:
6.1 Furnish or cause A. Borrower shall furnish Bank monthly financial statements (i.e., consolidated balance sheets and consolidated income statements) no later than thirty (30) days subsequent to be furnished to each month's end for such month. Together with the Bank monthly financial statements, Borrower shall provide a report identifying all the following, each of banks through which shall be in form and substance satisfactory to the BankBorrower is then issuing commercial paper, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 principal amount of commercial paper then outstanding issued through each bank. Within one hundred twenty ninety (12090) days after the end of each calendar during the term fiscal year of Borrower, Bank shall be provided with an audited income statement for such year and an audited balance sheet as of the Line end of Creditsuch year. All statements are to be prepared in accordance with generally accepted principles of auditing and accounting applied on a basis consistent with the accounting practices of Borrower reflected in the audited financial statements for the preceding fiscal year, and year end statements are to be certified without material qualification by Price Waterhouse, by any other "big six" national accounting firm, or by any independent certified public accountants of recognized standing selected by Borrower and acceptable to Bank. Borrower shall also furnish to Bank all other financial statements reasonably requested by Bank. Borrower shall also furnish to Bank copies of (i) annual federal income tax all financial statements, reports and returns of Borroweras it shall send to its stockholders, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Creditall regular, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole periodic, or in part by Borrower special reports (including but not limited to the Property), (ii) semi-annual operating reports on Form N-SAR and amendments to its registration statements on Form N-5) which it is or may be required to file with the PropertySecurities & Exchange Commission or any governmental department, bureau, commission or agency succeeding to the functions of the Securities & Exchange Commission, and (iii) an updated rent roll all examination reports of its affairs which it shall receive from the PropertySBA; and
6.1.3 Promptly all of which documents shall be delivered to Bank forthwith as and in form satisfactory to Bankwhen sent, such other information regarding the operations filed, or financial condition of Borrower as received by Borrower. Bank may reasonably request from time at any time, and without notice to timeor consent of Borrower, deliver to any participant in the Advances which are the subject of this Agreement, copies of all financial statements, reports, or any other documents delivered to Bank hereunder.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times riskB. Borrower shall keep proper books of record and accounts and, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to upon application, give any representative of Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrenceaccess during normal business hours to, and Bank shall be named as additional insured on permit him or her to examine, any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at documents in Borrower's reasonable expense at all reasonable timespossession relating to the financial affairs of Borrower and to inspect any of its properties.
6.5 Promptly notify C. Together with each of the monthly financial statements and the year-end audited financial statements to be provided pursuant to section 7.A. above, Borrower shall also furnish to Bank a certificate signed by its President or Chief Financial Officer stating that he or she has no knowledge of any condition events of default which have occurred under this Agreement or event of any matters which constitutes, or would constitute with the passage of time or giving constitute an event of notice or both, a default under this Agreementhereunder, or the Loan and Security Documents if he or any other document or instrument issued in connection herewith, and promptly notify Bank she shall have obtained knowledge of any changes such default or potential default he or she shall disclose in its financial condition which, individually such statement the default or cumulatively, may result in a material adverse change in its financial conditionpotential default and the nature thereof. Each such certificate shall be dated as of the last day of the month or year for which it is submitted.
6.6 Maintain D. Borrower shall maintain all insurable property, real and personal, owned by it insured at all times against loss or damage by fire or other normally insured hazards through a responsible insurance carrier selected by it in such amounts and to the extent of the coverage as is customary for companies engaged in similar businesses and in similar locations, but in no event shall said insurance be less than that which Bank, in good standing faith, believes is sufficient and adequate to protect the operating value of the property of Borrower. Borrower shall also carry insurance to cover its corporate existence and its status interest as a foreign corporation qualified to do business mortgagee in those jurisdictions where it is required the property securing the Third Party Loans to be qualifiedeffective in the event of any failure of the owner of such property to carry property insurance with respect thereto. The Collateral Agent (used herein as defined in the Intercreditor Agreement) shall be named as secured party loss payee in all such policies. Copies of all such insurance policies shall be delivered to Bank.
6.7 If it E. Borrower shall now or hereafter maintain an employee benefit plan subject keep the properties that are material to the Employee Retirement Income Security Act operation of 1974 (hereinafter "ERISA")its business, promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; whether owned or leased, in good condition, repair and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISAworking order.
6.8 At any time F. Borrower shall duly pay and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or discharge all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all lawful taxes, assessments and governmental charges upon it or relating against its properties prior to its incomethe date on which penalties are attached thereto, or unless and to the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges extent only that the Loan will same shall be placed contested in good faith and by appropriate proceedings by the Borrower and provided Borrower has established appropriate reserves for the payment of said taxes in accordance with generally accepted accounting practices.
G. Borrower shall do all things necessary to maintain its corporate existence, to preserve and keep in full force and effect its rights and franchises necessary to continue its businesses, and to comply with all applicable laws, regulations and ordinances (including without limitation any applicable state or federal securities laws) with respect to which the failure to comply would have a material adverse effect on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the H. Borrower shall pay to Bank, upon demand, all reasonable charges and retain expenses incurred by Bank as Borrowerfor attorney's main bank fees and expenses of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers litigation, in seeking relief from the Operating Account automatic stay or any other bankruptcy proceedings, or in connection with or in any way related to make any and all payments required Bank's relationship with Borrower, with respect to be made the transactions contemplated by Borrower this Agreement, whether hereunder or otherwise, including without limitation those incurred or expended in connection with the Line preparation of this Agreement or any amendment hereto, extension of the Credit includingFacility hereunder, and the protection or enforcement of Bank's rights hereunder. In addition thereto, Borrower shall pay to Bank all reasonable charges and expenses incurred by Bank, of every kind or description, arising subsequent to the occurrence of any Event of Default, including but not limited toto reasonable attorneys fees and expenses of litigation.
I. With respect to each of its Plans, monthly payments of principal and interest if any, under the Line of Credit NoteEmployee Retirement Income Security Act ("ERISA") and the Internal Revenue Code (the "Code"), late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related Borrower represents and warrants that:
1. all funding requirements have been met and will continue to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested met on an annual basis at basis;
2. no "prohibited transactions" have occurred and that none of the end transactions which are the subject of each fiscal year this Agreement constitute prohibited transactions under the rulings or regulations of ERISA or the Code;
3. all such Plans are and will continue to be qualified Plans; and
4. the Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicablehas complied with, and failure will continue to satisfy comply with, all reporting and disclosure requirements under ERISA, the foregoing covenant shall not be deemed a defaultCode, and the applicable rulings and regulations with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Creditfailure to so comply would have a material adverse effect on the Borrower.
6.12 Maintain J. Borrower shall maintain its primary operating account at all times a Bank.
K. Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0shall indemnify, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with defend and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicablehold Bank, and its officers, directors, employees, and agents, harmless from and against all claims, injury, damage, loss, costs (including attorneys' fees and costs) and liability of any and every kind to any persons or property by reason of (i) the breach of any representation or warranty herein or in any other Loan Document, (ii) the failure to satisfy fulfill any obligation under this Agreement or under any other Loan Document, or (iii) any other matter relating to, or action taken by Bank in connection with, the foregoing covenant shall not be deemed a defaultCredit Facility, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined unless caused by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event gross negligence or willful misconduct of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.
Appears in 1 contract
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and that, so long as (a) any Bank has any obligation to make any Loan under this Agreement, and/or (b) any of Borrower’s Obligations remain outstandingunpaid:
6.1 Furnish (a) Information Borrower will make available, deliver or cause to be furnished delivered to the Bank the following, Administrative Agent with sufficient copies for each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 Within one hundred twenty (120i) within ninety (90) days after the end of each calendar during the term fiscal year of Borrower: (A) a consolidated balance sheet of Borrower and its Subsidiaries as of the Line end of Creditsuch fiscal year and the related consolidated statements of income, (i) annual federal income tax returns retained earnings and cash flows for such fiscal year, setting forth in each case, in comparative form, the figures for the previous fiscal year, all such financial statements to be prepared in accordance with GAAP consistently applied and reported on by and accompanied by the unqualified opinion of Borrowerindependent certified public accountants selected by Borrower and reasonably acceptable to the Required Banks; provided, together however, that making available to the Administrative Agent copies of the Annual Report on Form 10-K of Borrower for such fiscal year filed with all schedules the Securities and attachments thereto, and Exchange Commission shall be deemed to satisfy the requirements of this Section 5.01(a)(i);
(ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty within forty five (12045) days after the end of each calendar year during the term of the Line of Credit, first three (i3) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition.
6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end fiscal quarters of each fiscal year of Borrower, a consolidated balance sheet of Borrower beginning with and including its Subsidiaries as of the end of such fiscal quarter and the related consolidated statements of income, retained earnings and cash flows for such fiscal quarter and for the portion of Borrower’s fiscal year ending December 31ended at the end of such fiscal quarter, 2021setting forth in each case in comparative form, the figures for the corresponding fiscal quarter and the corresponding portion of Borrower’s previous fiscal year, all in reasonable detail and satisfactory in form to the Required Banks and certified (subject to normal year-end adjustments and absence of footnote disclosures) as to fairness of presentation, consistency and compliance with GAAP by the chief financial officer of Borrower; provided, however, that making available to the foregoing covenant Administrative Agent copies of the Quarterly Report on Form 10-Q of Borrower for such fiscal quarter filed with the Securities and Exchange Commission shall be inapplicable, and failure deemed to satisfy the foregoing covenant shall not be deemed requirements of this Section 5.01(a)(ii);
(iii) within the timeframes outlined in Sections 5.01(a)(i) and (ii) above, as applicable, a defaultcertificate of an authorized officer of Borrower in the form attached hereto as Exhibit C and incorporated herein by reference (A) stating whether there exists on the date of such certificate any Default or Event of Default and, if any Default or Event of Default then exists, setting forth the details thereof and the action which Borrower is taking or proposes to take with respect to thereto, (B) certifying that all of the representations and warranties made by Borrower in this Agreement and/or in any fiscal year other Transaction Document are true and correct in which all material respects on and as of the date of such certificate as if made on and as of the date of such certificate and (C) certifying that Borrower has not borrowed any Advance under is in compliance with the Line of Credit.financial covenants contained in Sections 5.01(g) below; and
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0(iv) with reasonable promptness, which ratio shall be tested on an annual basis at such further information regarding the end of each fiscal year business, affairs and financial condition of Borrower beginning with and including as the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to Administrative Agent or any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised may from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Banktime reasonably request.
Appears in 1 contract
Samples: Loan Agreement (Laclede Gas Co)
AFFIRMATIVE COVENANTS OF BORROWER. 6.1.1 The Borrower covenants and agrees that it will during use the term hereof and so long as any Obligations remain outstanding:
6.1 Furnish or cause to be furnished to the Bank the following, each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term proceeds of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory Loan only for the purposes hereof)set forth in Section 2.3.
6.3 Maintain general liability insurance coverage of such types 6.1.2 The Borrower will furnish BCBSTX:
(1) as soon as available and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition.
6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at August 31 following the end of each fiscal year of the Borrower, a consolidated and consolidating balance sheet of the Borrower beginning and its Subsidiaries and consolidated and consolidating statements of operations and cash flows of the Borrower and its Subsidiaries for such year, setting forth in each case in comparative form corresponding figures from the preceding fiscal year, all in reasonable detail and satisfactory in scope to BCBSTX, all reported on by Price Waterhouse LLP or other independent certified public accountants of nationally recognized standing as having been prepared in accordance with generally accepted accounting principles applied on a consistent basis;
(2) as soon as available and including in any event no later than such statement is filed by any Subsidiary with a state insurance department or other state agency, a copy of any statement or report 20 22 required to be filed with such insurance department or state agency in the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, form filed;
(3) as soon as available and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to in any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at event within 60 days after the end of each quarter of each fiscal year of the Borrower beginning with (other than the quarter ending May 31), a consolidated balance sheet of the Borrower and including its Subsidiaries, and the related consolidated statements of operations and cash flows, and for the portion of the Borrower's fiscal year ending December 31ended at the end of such quarter, 2021; providedsetting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Borrower's previous fiscal year, howeverall certified (subject to normal year-end adjustments) as to the fairness of presentation, that the foregoing covenant shall be inapplicablegenerally accepted accounting principles, and failure consistency by the chief financial officer of the Borrower;
(4) simultaneously with the delivery of each set of financial statements referred to satisfy in clause (1) above, a certificate of the foregoing covenant shall not be deemed chief financial officer of the Borrower setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Sections 6.1.15 and 6.1.16 on the date of such financial statements and, simultaneously with the delivery of each set of financial statements referred to in clauses (1), (2) and (3) above a defaultcertificate stating whether there exists on the date of such certificate any Event of Default and, if any Event of Default exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.thereto;
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%5) percent. Bank reserves the right to have the Property reappraised from time to timetime such additional information regarding the financial position or business of the Borrower and the Subsidiaries as BCBSTX shall reasonably request; and
(6) The Borrower shall provide BCBSTX with a copy of each filing it makes with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934 within 15 days of the date such report is filed with the Securities and Exchange Commission. The obligation to deliver annual and quarterly financial statements set forth above may be satisfied by the Company by delivering copies of the Company's Annual Report on Form 10-K or Quarterly Reports on Form 10-Q filed with the Securities and Exchange Commission.
6.1.3 The Borrower and the Subsidiaries shall maintain accounting Records in a manner that is sufficient, which appraisal shall be in form all material respects, to reflect fairly the transactions, resources and substance satisfactory to Bank obligations of the respective companies, and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.to
Appears in 1 contract
Samples: Secured Convertible Term Loan Agreement (Managed Care Solutions Inc)
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and that, so long as any Obligations remain outstanding:
6.1 Furnish or cause to be furnished to portion of the Bank the following, each of which Revolver Commitment under this Agreement shall be in form effect and substance satisfactory to the Bankuntil payment, and shall be certified by the Borrower to be truein full, correct and complete:
6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line Loans, with interest accrued and unpaid thereon, all other Obligations (including Obligations in respect of Letters of Credit, (iunless all such Letters of Credit are cancelled, expire or are cash collateralized in accordance with the provisions of Section 2.8(a) annual federal income tax returns hereof) and all other amounts due hereunder, and except as set forth in the Disclosure Statement with specific reference to the Section of Borrowerthis Article V affected thereby concerning matters which do not conform to the covenants of this Article V, together with all schedules and attachments theretoBorrower will do, and (iiexcept in the case of the covenants set forth in Sections 5.2(a), (b), (c), (d) audited annual and (e), which covenants shall be performed by the Borrower) will cause the other Loan Parties and their Restricted Subsidiaries (and, in the case of Sections 5.3, 5.4 and 5.5, each Designated Subsidiary) to do, each and all of the following: . Maintain adequate financial statement of Borrower prepared by an independent certified public accountant and accounting books and records in accordance with GAAP;
6.1.2 Within one hundred twenty sound business practices and, to the extent so required, GAAP consistently applied, and permit any representative of Agent (120) days and after the end occurrence and during the continuance of an Event of Default, a representative of each calendar year during the term of the Line of Credit, (iLender) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited upon reasonable notice to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at any time during usual business hours, to inspect, audit, and examine such books and records and to make copies and take extracts therefrom, and to discuss its affairs, financing, and accounts with Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, ’s or the Loan applicable Subsidiary’s officers and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition.
6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021independent public accountants; provided, howeverthat Borrower shall only be obligated to reimburse Agent for the reasonable documented, that out-of-pocket expenses for one such inspection, audit or examination performed by such representative per calendar year absent the foregoing covenant shall be inapplicable, occurrence and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line continuance of Credit.
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisalDefault. Subject to Section 9.11, Borrower shall, shall furnish Agent with any information reasonably requested by Agent regarding PTP’s or its Subsidiaries’ business or finances promptly upon demand by Bank, immediately pay the cost of such appraisal to the Bankrequest.
Appears in 1 contract
Samples: Amendment No. 7 (Ares Management Lp)
AFFIRMATIVE COVENANTS OF BORROWER. The Borrower covenants and agrees with the Bank that it will during the term hereof and for so long as any Obligations indebtedness of the Borrower in respect of the Term Loan or the Revolving Credit Loan or any extension, renewal, rearrangement or other form of any such indebtedness shall remain outstandingoutstanding and unpaid:
6.1 Furnish 4.1 The Borrower will promptly advise the Bank in writing of the occurrence of any material adverse change in the financial condition of the Borrower, and any proposals or cause program to be furnished effected by the Borrower in respect thereof.
4.2 The Borrower will promptly advise the Bank in writing of any pending or threatened claim or litigation asserted against the Borrower which, if successfully prosecuted, would have a material adverse effect upon the financial condition of the Borrower materially and adversely affecting the anticipated operations of the Borrower.
4.3 Within forty-five days following the close of each quarter-annual fiscal year of the Borrower the Borrower will furnish to the Bank the followingfollowing financial statements concerning the financial conditions of the Borrower, as of the close of such fiscal period and the results of its operations for such period, in each case certified by a senior financial officer of the Borrower to have been prepared in accordance with generally accepted principles of accounting:
a) a Balance Sheet or Statement of assets and liabilities as of the close of such period;
b) a Statement of Profit and Loss or of Income and Expense for such period;
c) a statement of changes in capital accounts as a result of operations during such period; and
d) any other similar or relevant financial statements customarily prepared for the Borrower pertaining to its operations and transactions during such fiscal period.
4.4 The Borrower will at all times maintain a net worth, determined in accordance with generally accepted principles of accounting, of not less than fourteen million dollars.
4.5 Within ninety days following the close of each fiscal year of the Borrower the Borrower will furnish to the Bank financial statements of the Borrower equivalent to those specified in Section 4.3 each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct a reputable and complete:
6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant or firm of such accountants to have been prepared in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end generally accepted principles of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to timeaccounting.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition.
6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.
Appears in 1 contract
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during from the term date hereof and so long as any Obligations remain outstandinguntil payment in full of the principal and interest on the indebtedness evidenced by the Note and other documents, unless the Lender shall otherwise consent in writing, such consent to be at the discretion of the Lender, Borrower will:
6.1 Furnish (a) Keep the Land and other Collateral free and clear of all encumbrances, liens, mortgages, security interests and secondary financing, except for matters approved in writing by the Lender, and the Borrower shall not, without the prior written consent of the Lender, sell, transfer or convey all or any part of his interest in the Land or any portion thereof.
(b) Not lease any portion of the Land to any person or entity.
(c) Notify Lender immediately of any change of address of the Borrower.
(d) Pay all of his indebtedness and obligations promptly in accordance with normal terms and practices and pay and discharge or cause to be furnished to the Bank the followingpaid and discharged promptly all taxes, each of which shall be in form and substance satisfactory to the Bankassessments, and governmental charges or levies imposed upon him, the Land or any of the other Collateral, before the same shall be certified become in default, as well as all lawful claims for labor, materials, and supplies which otherwise, if unpaid might become a lien or charge upon such Land or other Collateral or any part thereof, unless such amounts are being properly protested by the Borrower to be true, correct and complete:Borrower.
6.1.1 Within one hundred twenty (120e) Provide Lender with quarterly 10Q reports within ten (10) days after the end of each calendar during the term their filing, as well as copies of the Line of Credit, annual audited financial statements within ten (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty (12010) days after the end of each calendar year during the term of the Line of Credit, their preparation.
(if) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, Furnish such other information regarding the operations or operation, business affairs, and financial condition of Borrower the Borrower, as Bank the Lender may reasonably request from time to timerequest.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof)g) Maintain its operating accounts with Lender.
6.3 (h) Maintain general liability insurance coverage a debt service ratio of such types and in such amounts as at least 2:0 to 1:0. (This convenant shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition.
6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank measured quarterly and shall be at Bank's sole cost calculated as net income, plus depreciation and expenseinterest, except as provided in the following sentence. If an Event of Default has occurred or is confirmed divided by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Banktotal banks and leasing debt service requirements.)
Appears in 1 contract
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during from and after the term hereof date hereof, and so long as any the Obligations remain outstandingunpaid or this Agreement remains in effect, as follows:
6.1 Furnish or cause (a) Borrower shall deliver to be furnished to the Bank the followingBank, each of which shall be in form and substance content satisfactory to the Bank, within ninety (90) days after the last day of each fiscal year of Borrower, annual financial statements of each corporate Borrower on a consolidated basis, including statements of income, expenses, retained earnings and cash flows for the just-ended fiscal year and a balance sheet as of the end of such fiscal year, such statements to be prepared and audited by a certified public accountant acceptable to Bank.
(b) Borrower shall deliver to Bank, in form and content satisfactory to Bank, within forty-five (45) days after the last day of each calendar quarter, interim financial statements of each corporate Borrower, including an income and expense statement and balance sheet, such statements to present fairly the financial condition and results of operations as of and for the periods specified, to set forth all material claims and liabilities, contingent or otherwise, and fully to disclose any Event of Default, including the nature and period of existence thereof, and such statements to be prepared and certified by the chief financial officer of the corporate Borrowers.
(c) Borrower shall deliver to be trueBank, correct in form and complete:
6.1.1 Within content satisfactory to Bank, within forty-five (45) days after the last day of each calendar quarter, such data, information and reports of or concerning Borrower and each Obligor as Bank may reasonably request and the following additional documents and information: an aging of Borrower's accounts receivable and a Borrowing Base Certificate. Borrower shall deliver to Bank, in form and content satisfactory to Bank, within forty-five (45) days after the last day of each fiscal quarter, a Compliance Certificate and a report from Raymxxx Xxxex & Xssociates, Inc. showing the status of the accounts of Guarantor Dennxx X. Xxxxx xxxntained with Raymxxx Xxxex & Xssociates, Inc., including account balances and a description of all investments in the accounts. Additionally, Borrower shall deliver to Bank, in form and content satisfactory to Bank, within one hundred twenty (120) days after the end last day of each calendar during the term year, a personal financial statement on Dennxx X. Xxxxx.
(d) Borrower shall keep adequate records and books of the Line of Creditaccounts, (i) annual federal income tax returns of Borrowerin which complete entries will be made, together with reflecting all schedules and attachments theretoits financial transactions, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant shall maintain its books, accounts and records, including, without limitation, all books and records evidencing or relating to Collateral, in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrowergenerally accepted accounting principles, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under chief executive office as set forth in this Agreement, and shall not remove said books and records from such address without the prior written consent of Bank.
(e) Borrower shall permit Bank or any persons duly designated by Bank to call at the Loan places of business of Borrower at any reasonable time, and Security Documents without hindrance or delay to visit, inspect, audit and check any of Borrower's properties, books, records, journals, orders, receipts and any correspondence or other data relating to Borrower's business or any other document transactions between or instrument issued in connection herewithamong the parties hereto, and promptly notify Bank of any changes in its to make copies thereof and take extracts therefrom, and to discuss Borrower's financial condition which, individually or cumulatively, may result in a material adverse change in its affairs with Borrower's financial conditionofficers and accountants.
6.6 Maintain in good standing its corporate existence (f) Borrower shall pay and its status as a foreign corporation qualified to do business in those jurisdictions where it is required discharge or cause to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; paid and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit discharged promptly when due all taxes, assessments assessments, fees, withholdings and other governmental charges or levies imposed upon or relating to its incomeit, or the operation upon its income and profits, or upon any property belonging to it, as well as all claims of its business any kind (including claims for labor, materials and supplies), which, if unpaid, might by law become a lien or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021charge against said property; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant Borrower shall not be required to pay any such tax, assessment, fee, withholding, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings, and if it shall have either: (i) set aside on its books reserves (segregated to the extent required by sound accounting practice) deemed a default, by Bank adequate with respect thereto, or (ii) established a deposit with Bank sufficient to any fiscal year pay or discharge such tax, assessment, fee, withholding, charge, levy or claim, if such proceedings are adversely determined.
(g) Each corporate Borrower shall maintain its existence in good standing in the state of its organization or incorporation, maintain its qualification to conduct business and good standing in all jurisdictions where, under applicable law, the failure so to qualify could have a material adverse effect on Borrower's business or its ability to perform the Loan Documents, and conduct its business in the manner in which Borrower has not borrowed any Advance under it is now conducted subject only to changes made in the Line ordinary course of Creditbusiness.
6.12 Maintain at all times a (h) Borrower Debt Service Coverage Ratio shall promptly, and in any event within five (5) business days after it becomes aware thereof, notify Bank in writing of not less than l .20x the occurrence of any material adverse change in its or any Obligor's business, properties, operations or conditions (financial or other) which could reasonably be expected to 1.0impair materially its or such Obligor's ability to perform its or his obligations pursuant to this Agreement, which ratio shall be tested on an annual basis at or any of the end other Loan Documents, the occurrence of each fiscal year any Event of Default or the occurrence of any pending or threatened litigation claiming damages in excess of $25,000 or seeking relief that, if granted, would adversely affect the financial condition or business operations of Borrower beginning with or any Obligor.
(i) Borrower shall pay or cause to be paid the principal of, and, if any, the interest and including premium on all indebtedness heretofore or hereafter incurred or assumed by it when and as the fiscal year ending December 31same shall become due and payable, 2021unless such indebtedness be renewed or extended; and faithfully observe, perform and discharge all the covenants, conditions and obligations that are imposed upon it by any and all indentures and other agreements securing or evidencing such indebtedness or pursuant to which such indebtedness is issued, and not permit the continuance of any act or omission that is, or pursuant to the provisions thereof may be declared to be, a default in the payment of principal and interest, unless waived, pursuant to the provisions thereof; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant Borrower shall not be required to make any payment or to take any other action pursuant to this subparagraph at any time while it shall be currently contesting in good faith by appropriate proceedings its obligations to make such a payment or to take such action, if it shall have either: (i) set aside on its books, reserves (segregated to the extent required by sound accounting practices) deemed adequate with respect thereto, or (ii) established a defaultdeposit with Bank sufficient to pay any such amount if such proceedings are adversely determined.
(j) Borrower shall take all appropriate action necessary to protect its business and assets consistent with normal practices; conduct its business in a sound and businesslike manner; and do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and all of its rights.
(k) Borrower shall pay or reimburse Bank for any reasonable out-of-pocket expenses, including, without limitation, attorneys' fees, incurred by Bank in preparing, negotiating, modifying or amending the Loan Documents.
(l) Borrower shall fund all of its "plans" (if any) to which the minimum funding standards of Section 302 of ERISA apply in accordance with such standards; furnish Bank, promptly upon Bank's request, copies of all reports or other statements filed with, or received from, the United States Department of Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation with respect to all of Borrower's "plans"; and promptly advise Bank of the occurrence of any "reportable event" or "prohibited transaction" with respect to any fiscal year such "plan" (as all quoted terms are defined in which Borrower has not borrowed any Advance under the Line of CreditERISA).
6.13 Maintain at (m) Borrower shall comply with all times a ratio of the Line of Credit to the value of the Property applicable present and future local, state and federal laws, including, without limitation, environmental laws and regulations; notify Bank immediately if any "hazardous substance" (as determined defined in CERCLA) is released, discharged, disposed of, stored, or discovered on any real or personal property owned or leased by the most recent appraisal prepared Borrower; notify Bank in writing within three (3) days after Borrower receives notice from any governmental authority or any individual or entity claiming violation of any environmental protection law or regulation, or demanding compliance with any environmental protection law or regulation, or demanding payment, indemnity, or contribution for any environmental damage or injury to natural resources; and accepted by Bank), which shall not exceed sixty-five (65%) percent. permit Bank reserves the right to have the Property reappraised from time to time, which appraisal time without hindrance or delay to observe Borrower's operations and to perform tests (including soil tests and ground water tests) for "hazardous substances" on any real or personal property owned or leased by Borrower.
(n) Borrower shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the maintain its principal transaction account with Bank.
Appears in 1 contract
Samples: Commercial Loan Agreement (Professional Transportation Group LTD Inc)
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during from and after the term hereof date hereof, and so long as any the Obligations remain outstandingunpaid or this Agreement remains in effect, as follows:
6.1 Furnish or cause (a) Borrower shall deliver to be furnished to the Bank the followingBank, each of which shall be in form and substance content satisfactory to the Bank, within ninety (90) days after the last day of each fiscal year of Borrower, annual financial statements of each corporate Borrower on a consolidated basis, including statements of income, expenses, retained earnings and cash flows for the just-ended fiscal year and a balance sheet as of the end of such fiscal year, such statements to be prepared and audited by a certified public accountant acceptable to Bank.
(b) Borrower shall deliver to Bank, in form and content satisfactory to Bank, within thirty (30) days after the last day of each calendar month, interim financial statements of each corporate Borrower, including an income and expense statement and balance sheet, such statements to present fairly the financial condition and results of operations as of and for the periods specified, to set forth all material claims and liabilities, contingent or otherwise, and fully to disclose any Event of Default, including the nature and period of existence thereof, and such statements to be prepared and certified by the chief financial officer of the corporate Borrowers.
(c) Borrower shall deliver to be trueBank, correct in form and complete:
6.1.1 Within content satisfactory to Bank, within thirty (30) days after the last day of each calendar month, such data, information and reports of or concerning Borrower and each Obligor as Bank may reasonably request and the following additional documents and information: an aging of Borrower's accounts receivable and a Borrowing Base Certificate. Borrower shall deliver to Bank, in form and content satisfactory to Bank, within thirty (30) days after the last day of each fiscal quarter, a Compliance Certificate and a report from Raymxxx Xxxex & Xssociates, Inc. showing the status of the accounts of Borrower Dennxx X. Xxxxx xxxntained with Raymxxx Xxxex & Xssociates, Inc. and which comprise the Eligible Securities, including account balances and a description of all investments in the accounts. Additionally, Borrower shall deliver to Bank, in form and content satisfactory to Bank, within one hundred twenty (120) days after the end last day of each calendar during the term year, a personal financial statement on Dennxx X. Xxxxx.
(d) Borrower shall keep adequate records and books of the Line of Creditaccounts, (i) annual federal income tax returns of Borrowerin which complete entries will be made, together with reflecting all schedules and attachments theretoits financial transactions, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant shall maintain its books, accounts and records, including, without limitation, all books and records evidencing or relating to Collateral, in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and
6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrowergenerally accepted accounting principles, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under chief executive office as set forth in this Agreement, and shall not remove said books and records from such address without the prior written consent of Bank.
(e) Borrower shall permit Bank or any persons duly designated by Bank to call at the Loan places of business of Borrower at any reasonable time, and Security Documents without hindrance or delay to visit, inspect, audit and check any of Borrower's properties, books, records, journals, orders, receipts and any correspondence or other data relating to Borrower's business or any other document transactions between or instrument issued in connection herewithamong the parties hereto, and promptly notify Bank of any changes in its to make copies thereof and take extracts therefrom, and to discuss Borrower's financial condition which, individually or cumulatively, may result in a material adverse change in its affairs with Borrower's financial conditionofficers and accountants.
6.6 Maintain in good standing its corporate existence (f) Borrower shall pay and its status as a foreign corporation qualified to do business in those jurisdictions where it is required discharge or cause to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; paid and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit discharged promptly when due all taxes, assessments assessments, fees, withholdings and other governmental charges or levies imposed upon or relating to its incomeit, or the operation upon its income and profits, or upon any property belonging to it, as well as all claims of its business any kind (including claims for labor, materials and supplies), which, if unpaid, might by law become a lien or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021charge against said property; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant Borrower shall not be required to pay any such tax, assessment, fee, withholding, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings, and if it shall have either: (i) set aside on its books reserves (segregated to the extent required by sound accounting practice) deemed a default, by Bank adequate with respect thereto, or (ii) established a deposit with Bank sufficient to any fiscal year pay or discharge such tax, assessment, fee, withholding, charge, levy or claim, if such proceedings are adversely determined.
(g) Each corporate Borrower shall maintain its existence in good standing in the state of its organization or incorporation, maintain its qualification to conduct business and good standing in all jurisdictions where, under applicable law, the failure so to qualify could have a material adverse effect on Borrower's business or its ability to perform the Loan Documents, and conduct its business in the manner in which Borrower has not borrowed any Advance under it is now conducted subject only to changes made in the Line ordinary course of Creditbusiness.
6.12 Maintain at all times a (h) Borrower Debt Service Coverage Ratio shall promptly, and in any event within five (5) business days after it becomes aware thereof, notify Bank in writing of not less than l .20x the occurrence of any material adverse change in its or any Obligor's business, properties, operations or conditions (financial or other) which could reasonably be expected to 1.0impair substantially its or such Obligor's ability to perform its or his obligations pursuant to this Agreement, which ratio shall be tested on an annual basis at or any of the end other Loan Documents, the occurrence of each fiscal year any Event of Default or the occurrence of any pending or threatened litigation claiming damages in excess of $10,000 or seeking relief that, if granted, would adversely affect the financial condition or business operations of Borrower beginning with or any Obligor.
(i) Borrower shall pay or cause to be paid the principal of, and, if any, the interest and including premium on all indebtedness heretofore or hereafter incurred or assumed by it when and as the fiscal year ending December 31same shall become due and payable, 2021unless such indebtedness be renewed or extended; and faithfully observe, perform and discharge all the covenants, conditions and obligations that are imposed upon it by any and all indentures and other agreements securing or evidencing such indebtedness or pursuant to which such indebtedness is issued, and not permit the continuance of any act or omission that is, or pursuant to the provisions thereof may be declared to be, a default in the payment of principal and interest, unless waived, pursuant to the provisions thereof; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant Borrower shall not be required to make any payment or to take any other action pursuant to this subparagraph at any time while it shall be currently contesting in good faith by appropriate proceedings its obligations to make such a payment or to take such action, if it shall have either: (i) set aside on its books, reserves (segregated to the extent required by sound accounting practices) deemed adequate with respect thereto, or (ii) established a defaultdeposit with Bank sufficient to pay any such amount if such proceedings are adversely determined.
(j) Borrower shall take all appropriate action necessary to protect its business and assets consistent with normal practices; conduct its business in a sound and businesslike manner; and do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and all of its rights.
(k) Borrower shall pay or reimburse Bank for any out-of-pocket expenses, including, without limitation, attorneys' fees, incurred by Bank in preparing, negotiating, modifying or amending the Loan Documents.
(l) Borrower shall fund all of its "plans" (if any) to which the minimum funding standards of Section 302 of ERISA apply in accordance with such standards; furnish Bank, promptly upon Bank's request, copies of all reports or other statements filed with, or received from, the United States Department of Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation with respect to all of Borrower's "plans"; and promptly advise Bank of the occurrence of any "reportable event" or "prohibited transaction" with respect to any fiscal year such "plan" (as all quoted terms are defined in which Borrower has not borrowed any Advance under the Line of CreditERISA).
6.13 Maintain at (m) Borrower shall comply with all times a ratio of the Line of Credit to the value of the Property applicable present and future local, state and federal laws, including, without limitation, environmental laws and regulations; notify Bank immediately if any "hazardous substance" (as determined defined in CERCLA) is released, discharged, disposed of, stored, or discovered on any real or personal property owned or leased by the most recent appraisal prepared Borrower; notify Bank in writing within three (3) days after Borrower receives notice from any governmental authority or any individual or entity claiming violation of any environmental protection law or regulation, or demanding compliance with any environmental protection law or regulation, or demanding payment, indemnity, or contribution for any environmental damage or injury to natural resources; and accepted by Bank), which shall not exceed sixty-five (65%) percent. permit Bank reserves the right to have the Property reappraised from time to time, which appraisal time without hindrance or delay to observe Borrower's operations and to perform tests (including soil tests and ground water tests) for "hazardous substances" on any real or personal property owned or leased by Borrower.
(n) Borrower shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the maintain its principal transaction account with Bank.
Appears in 1 contract
Samples: Commercial Loan Agreement (Professional Transporation Group LTD)
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstandingfollows:
6.1 Furnish or cause A. Borrower shall furnish Bank monthly financial statements (i.e., consolidated balance sheets and consolidated income statements) no later than thirty (30) days subsequent to be furnished to each month's end for such month. Together with the Bank monthly financial statements, Borrower shall provide a report identifying all the following, each of banks through which shall be in form and substance satisfactory to the BankBorrower is then issuing commercial paper, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 principal amount of commercial paper then outstanding issued through each bank. Within one hundred twenty ninety (12090) days after the end of each calendar during the term fiscal year of Borrower, Bank shall be provided with an audited income statement for such year and an audited balance sheet as of the Line end of Creditsuch year. All statements are to be prepared in accordance with generally accepted principles of auditing and accounting applied on a basis consistent with the accounting practices of Borrower reflected in the audited financial statements for the preceding fiscal year, and year end statements are to be certified without material qualification by Price Waterhouse, by any other "big six" national accounting firm, or by any independent certified public accountants of recognized standing selected by Borrower and acceptable to Bank. Borrower shall also furnish to Bank all other financial statements reasonably requested by Bank. Borrower shall also furnish to Bank copies of (i) annual federal income tax all financial statements, reports and returns of Borroweras it shall send to its stockholders, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP;
6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Creditall regular, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole periodic, or in part by Borrower special reports (including but not limited to the Property), (ii) semi-annual operating reports on Form N-SAR and amendments to its registration statements on Form N-5) which it is or may be required to file with the PropertySecurities & Exchange Commission or any governmental department, bureau, commission or agency succeeding to the functions of the Securities & Exchange Commission, and (iii) an updated rent roll all examination reports of its affairs which it shall receive from the PropertySBA; and
6.1.3 Promptly all of which documents shall be delivered to Bank forthwith as and in form satisfactory to Bankwhen sent, such other information regarding the operations filed, or financial condition of Borrower as received by Borrower. Bank may reasonably request from time at any time, and without notice to timeor consent of Borrower, deliver to any participant in the Advances which are the subject of this Agreement, copies of all financial statements, reports, or any other documents delivered to Bank hereunder.
6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times riskB. Borrower shall keep proper books of record and accounts and, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to upon application, give any representative of Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrenceaccess during normal business hours to, and Bank shall be named as additional insured on permit him or her to examine, any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at documents in Borrower's reasonable expense at all reasonable timespossession relating to the financial affairs of Borrower and to inspect any of its properties.
6.5 Promptly notify C. Together with each of the monthly financial statements and the year-end audited financial statements to be provided pursuant to section 7.A. above, Borrower shall also furnish to Bank a certificate signed by its President or Chief Financial Officer stating that he or she has no knowledge of any condition events of default which have occurred under this Agreement or event of any matters which constitutes, or would constitute with the passage of time or giving constitute an event of notice or both, a default under this Agreementhereunder, or the Loan and Security Documents if he or any other document or instrument issued in connection herewith, and promptly notify Bank she shall have obtained knowledge of any changes such default or potential default he or she shall disclose in its financial condition which, individually such statement the default or cumulatively, may result in a material adverse change in its financial conditionpotential default and the nature thereof. Each such certificate shall be dated as of the last day of the month or year for which it is submitted.
6.6 Maintain D. Borrower shall maintain all insurable property, real and personal, owned by it insured at all times against loss or damage by fire or other normally insured hazards through a responsible insurance carrier selected by it in such amounts and to the extent of the coverage as is customary for companies engaged in similar businesses and in similar locations, but in no event shall said insurance be less than that which Bank, in good standing faith, believes is sufficient and adequate to protect the operating value of the property of Borrower. Borrower shall also carry insurance to cover its corporate existence and its status interest as a foreign corporation qualified to do business mortgagee in those jurisdictions where it is required the property securing the Third Party Loans to be qualifiedeffective in the event of any failure of the owner of such property to carry property insurance with respect thereto. The Collateral Agent (used herein as defined in the Intercreditor Agreement) shall be named as secured party loss payee in all such policies. Copies of all such insurance policies shall be delivered to Bank.
6.7 If it E. Borrower shall now or hereafter maintain an employee benefit plan subject keep the properties that are material to the Employee Retirement Income Security Act operation of 1974 (hereinafter "ERISA")its business, promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; whether owned or leased, in good condition, repair and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISAworking order.
6.8 At any time F. Borrower shall duly pay and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or discharge all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit promptly when due all lawful taxes, assessments and governmental charges upon it or relating against its properties prior to its incomethe date on which penalties are attached thereto, or unless and to the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges extent only that the Loan will same shall be placed contested in good faith and by appropriate proceedings by the Borrower and provided Borrower has established appropriate reserves for the payment of said taxes in accordance with generally accepted accounting practices.
G. Borrower shall do all things necessary to maintain its corporate existence, to preserve and keep in full force and effect its rights and franchises necessary to continue its businesses, and to comply with all applicable laws, regulations and ordinances (including without limitation any applicable state or federal securities laws) with respect to which the failure to comply would have a material adverse effect on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain H. Borrower shall pay to Bank, upon demand, all reasonable charges and expenses incurred by Bank for attorney's fees and expenses of litigation, in seeking relief from the automatic stay or any other bankruptcy proceedings, or in connection with or in any way related to Bank's relationship with Borrower, with respect to the transactions contemplated by this Agreement, whether hereunder or otherwise, including without limitation those incurred or expended in connection with the preparation of this Agreement or any amendment hereto, extension of the Credit Facility hereunder, and the protection or enforcement of Bank's rights hereunder. In addition thereto, Borrower shall pay to Bank all reasonable charges and expenses incurred by Bank, of every kind or description, arising subsequent to the occurrence of any Event of Default, including but not limited to reasonable attorneys fees and expenses of litigation.
I. With respect to each of its Plans, if any, under the Employee Retirement Income Security Act ("ERISA") and the Internal Revenue Code (the "Code"), Borrower represents and warrants that:
1. all funding requirements have been met and will continue to be met on an annual basis;
2. no "prohibited transactions" have occurred and that none of the transactions which are the subject of this Agreement constitute prohibited transactions under the rulings or regulations of ERISA or the Code;
3. all such Plans are and will continue to be qualified Plans; and
4. the Borrower has complied with, and will continue to comply with, all reporting and disclosure requirements under ERISA, the Code, and the applicable rulings and regulations with respect to which the failure to so comply would have a material adverse effect on the Borrower.
J. Borrower shall maintain an operating account ("Operating Account") for the Property with at the Bank, and retain Bank is hereby authorized to charge such account for all amounts due from Borrower to Bank pursuant to this Agreement as Borrower's main bank and when due.
K. Borrower shall indemnify, defend and hold Bank, and its officers, directors, employees, and agents, harmless from and against all claims, injury, damage, loss, costs (including attorneys' fees and costs) and liability of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required every kind to be made any persons or property by Borrower reason of (i) the breach of any representation or warranty herein or in any other Loan Document, (ii) the failure to fulfill any obligation under this Agreement or under any other Loan Document, or (iii) any other matter relating to, or action taken by Bank in connection with with, the Line of Credit includingFacility, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.
6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined unless caused by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event gross negligence or willful misconduct of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.
Appears in 1 contract
AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during from and after the term hereof date hereof, and so long as any the Obligations remain outstandingunpaid or this Agreement remains in effect, as follows:
6.1 Furnish or cause (a) Borrower shall deliver to be furnished to the Bank the followingBank, each of which shall be in form and substance content satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete:
6.1.1 Within one hundred twenty within ninety (12090) days after the end last day of each calendar during the term of the Line of Credit, (i) annual federal income tax returns fiscal year of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement statements of each corporate Borrower on a consolidated basis, including statements of income, expenses, retained earnings and cash flows for the just-ended fiscal year and a balance sheet as of the end of such fiscal year, such statements to be prepared and audited by an independent a certified public accountant acceptable to Bank.
(b) Borrower shall deliver to Bank, in accordance with GAAP;
6.1.2 Within one hundred twenty form and content satisfactory to Bank, within forty-five (12045) days after the end last day of each calendar year during the term quarter, interim financial statements of the Line of Crediteach corporate Borrower on a consolidated basis, (i) cash flow schedules showing including an income and expense statement and balance sheet, such statements to present fairly the financial condition and results of Borrower operations as of and for the periods specified, to set forth all properties owned in whole material claims and liabilities, contingent or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Propertyotherwise, and (iii) an updated rent roll fully to disclose any Event of Default, including the nature and period of existence thereof, and such statements to be prepared and certified by the chief financial officer of the Property; andcorporate Borrowers.
6.1.3 Promptly and (c) Borrower shall deliver to Bank, in form and content satisfactory to Bank, within forty-five (45) days after the last day of each calendar quarter, such other data, information regarding the operations and reports of or financial condition of concerning Borrower and each Obligor as Bank may reasonably request from time to time.
6.2 Enforce and the Property Ground Lease to cause Tenant to maintain at all times risk, hazard following additional documents and fire insurance for the Property from information: an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof).
6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank.
6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals aging of Borrower's business accounts receivable and assets a Borrowing Base Certificate. In addition to the quarterly Borrowing Base Certificate, Borrower shall also provide Lender a Borrowing Base Certificate on a weekly basis. Borrower shall deliver to Bank, in form and content satisfactory to examine Bank, within forty-five (45) days after the last day of each fiscal quarter, a Compliance Certificate and a report from Raymxxx Xxxex & Xssociates, Inc. showing the status of the accounts of Guarantor Dennxx X. Xxxxx xxxntained with Raymxxx Xxxex & Xssociates, Inc., including account balances and a description of all investments in the accounts. Additionally, Borrower shall deliver to
(d) Borrower shall keep adequate records and books of accounts, in which complete entries will be made, reflecting all its financial transactions, and shall maintain its books, accounts and records, including, without limitation, all books and records and assets of every kind and description of Borrowerevidencing or relating to Collateral, in accordance with generally accepted accounting principles, at Borrower's reasonable expense at all reasonable times.
6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under chief executive office as set forth in this Agreement, and shall not remove said books and records from such address without the prior written consent of Bank.
(e) Borrower shall permit Bank or any persons duly designated by Bank to call at the Loan places of business of Borrower at any reasonable time, and Security Documents without hindrance or delay to visit, inspect, audit and check any of Borrower's properties, books, records, journals, orders, receipts and any correspondence or other data relating to Borrower's business or any other document transactions between or instrument issued in connection herewithamong the parties hereto, and promptly notify Bank of any changes in its to make copies thereof and take extracts therefrom, and to discuss Borrower's financial condition which, individually or cumulatively, may result in a material adverse change in its affairs with Borrower's financial conditionofficers and accountants.
6.6 Maintain in good standing its corporate existence (f) Borrower shall pay and its status as a foreign corporation qualified to do business in those jurisdictions where it is required discharge or cause to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; paid and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject.
6.9 Pay or deposit discharged promptly when due all taxes, assessments assessments, fees, withholdings and other governmental charges or levies imposed upon or relating to its incomeit, or the operation upon its income and profits, or upon any property belonging to it, as well as all claims of its business any kind (including claims for labor, materials and supplies), which, if unpaid, might by law become a lien or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower.
6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments.
6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021charge against said property; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant Borrower shall not be required to pay any such tax, assessment, fee, withholding, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings, and if it shall have either: (i) set aside on its books reserves (segregated to the extent required by sound accounting practice) deemed a default, by Bank adequate with respect thereto, or (ii) established a deposit with Bank sufficient to any fiscal year pay or discharge such tax, assessment, fee, withholding, charge, levy or claim, if such proceedings are adversely determined.
(g) Each corporate Borrower shall maintain its existence in good standing in the state of its organization or incorporation, maintain its qualification to conduct business and good standing in all jurisdictions where, under applicable law, the failure so to qualify could have a material adverse effect on Borrower's business or its ability to perform the Loan Documents, and conduct its business in the manner in which Borrower has not borrowed any Advance under it is now conducted subject only to changes made in the Line ordinary course of Creditbusiness.
6.12 Maintain at all times a (h) Borrower Debt Service Coverage Ratio shall promptly, and in any event within five (5) business days after it becomes aware thereof, notify Bank in writing of not less than l .20x the occurrence of any material adverse change in its or any Obligor's business, properties, operations or conditions (financial or other) which could reasonably be expected to 1.0impair materially its or such Obligor's ability to perform its or his obligations pursuant to this Agreement, which ratio shall be tested on an annual basis at or any of the end other Loan Documents, the occurrence of each fiscal year any Event of Default or the occurrence of any pending or threatened litigation claiming damages in excess of $25,000 or seeking relief that, if granted, would adversely affect the financial condition or business operations of Borrower beginning with or any Obligor.
(i) Borrower shall pay or cause to be paid the principal of, and, if any, the interest and including premium on all indebtedness heretofore or hereafter incurred or assumed by it when and as the fiscal year ending December 31same shall become due and payable, 2021unless such indebtedness be renewed or extended; and faithfully observe, perform and discharge all the covenants, conditions and obligations that are imposed upon it by any and all indentures and other agreements securing or evidencing such indebtedness or pursuant to which such indebtedness is issued, and not permit the continuance of any act or omission that is, or pursuant to the provisions thereof may be declared to be, a default in the payment of principal and interest, unless waived, pursuant to the provisions thereof; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant Borrower shall not be required to make any payment or to take any other action pursuant to this subparagraph at any time while it shall be currently contesting in good faith by appropriate proceedings its obligations to make such a payment or to take such action, if it shall have either: (i) set aside on its books, reserves (segregated to the extent required by sound accounting practices) deemed adequate with respect thereto, or (ii) established a defaultdeposit with Bank sufficient to pay any such amount if such proceedings are adversely determined.
(j) Borrower shall take all appropriate action necessary to protect its business and assets consistent with normal practices; conduct its business in a sound and businesslike manner; and do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and all of its rights.
(k) Borrower shall pay or reimburse Bank for any reasonable out-of-pocket expenses, including, without limitation, attorneys' fees, incurred by Bank in preparing, negotiating, modifying or amending the Loan Documents.
(l) Borrower shall fund all of its "plans" (if any) to which the minimum funding standards of Section 302 of ERISA apply in accordance with such standards; furnish Bank, promptly upon Bank's request, copies of all reports or other statements filed with, or received from, the United States Department of Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation with respect to all of Borrower's "plans"; and promptly advise Bank of the occurrence of any "reportable event" or "prohibited transaction" with respect to any fiscal year such "plan" (as all quoted terms are defined in which Borrower has not borrowed any Advance under the Line of CreditERISA).
6.13 Maintain at (m) Borrower shall comply with all times a ratio of the Line of Credit to the value of the Property applicable present and future local, state and federal laws, including, without limitation, environmental laws and regulations; notify Bank immediately if any "hazardous substance" (as determined defined in CERCLA) is released, discharged, disposed of, stored, or discovered on any real or personal property owned or leased by the most recent appraisal prepared Borrower; notify Bank in writing within three (3) days after Borrower receives notice from any governmental authority or any individual or entity claiming violation of any environmental protection law or regulation, or demanding compliance with any environmental protection law or regulation, or demanding payment, indemnity, or contribution for any environmental damage or injury to natural resources; and accepted by Bank), which shall not exceed sixty-five (65%) percent. permit Bank reserves the right to have the Property reappraised from time to time, which appraisal time without hindrance or delay to observe Borrower's operations and to perform tests (including soil tests and ground water tests) for "hazardous substances" on any real or personal property owned or leased by Borrower.
(n) Borrower shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the maintain its principal transaction account with Bank.
Appears in 1 contract
Samples: Commercial Loan Agreement (Professional Transportation Group LTD Inc)