COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding: 6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"): (a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct; (b) as soon as practicable (and in any event within one hundred eighty (180) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants; (c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and (d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations. 6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records. 6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof. 6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 2 contracts
Samples: Subordinated Loan and Security Agreement (Docent Inc), Subordinated Loan and Security Agreement (Docent Inc)
COVENANTS OF BORROWER. Until payment in full of the Note and all other sums required to be paid by Borrower covenants under the Security Instruments and this Agreement, Borrower shall:
2.4.1 cause the Improvements to be constructed, equipped and completed, diligently and continuously and with all reasonable dispatch, in accordance with all laws, rules, regulations and requirements of all governmental authorities having jurisdiction with respect to the Improvements, the appropriate Board of Fire Underwriters, and the Plans and any modifications and additions to the Plans which may be deemed necessary or desirable by Lender and/or Lender's construction representative, which modifications and additions to the Plans, Borrower agrees as follows to provide within ten (10) days after Lender's request therefor;
2.4.2 in any event, cause the Improvements to be completed and ready for operation and occupancy on or before April 28, 2001 (the "Construction Completion Date");
2.4.3 make no material changes or amendments to the Plans and make no change orders without the prior written approval of Lender;
2.4.4 with respect to any amendments or supplements to the Plans, to which Lender shall have given its prior written approval, file all such amendments and supplements with, and obtain all necessary approvals from, all governmental authorities having jurisdiction thereof and promptly deliver true copies thereof to Lender;
2.4.5 permit Lender and its representatives to enter upon the Premises and inspect the Improvements at all times while during normal business hours and examine all detailed plans, shop drawings, specifications and other books and records relating to the Premises and the Improvements;
2.4.6 not enter into any lease with respect to the Premises (excepting equipment leases) without first having submitted to the Lender a copy of said lease together with a duly executed subordination of lease agreement;
2.4.7 within five (5) days after construction of the Secured Obligations remain outstandingfoundation has been completed, deliver a certificate from an engineer or surveyor satisfactory to Lender to the effect that no part of the foundation or Improvements encroaches on any adjoining parcel of land, that the foundation is located on the Premises in accordance with the Plans, and that all Improvements then constructed are contained within the boundaries of the Premises and are in compliance with all applicable setback (front, side, and rear) requirements;
2.4.8 permit Lender to erect an appropriate sign on the Premises at such location as Lender, in its discretion, may determine, indicating that the Improvements are being financed by Lender;
2.4.9 furnish or cause to be furnished to Lender:
6.1 2.4.9.1 as soon as available, but in any event upon filing with applicable taxing authorities, a copy of each federal and state tax return of Borrower shall furnish and any guarantors;
2.4.9.2 as soon as available, but in any event within fifteen (15) days after the close of each fiscal month: (a) a statement of stockholders' equity and a statement of changes in cash flow of Borrower for such fiscal month; (b) income statement of Borrower for such fiscal month; and (c) balance sheets of Borrower as of the end of such fiscal month-all such statements to be in reasonable detail, including all supporting schedules and comments and any management letters issued with respect to Borrower; the statements and balance sheets to be certified as accurate and complete by the President or chief financial officer of Borrower and acceptable to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (principles, such statement to present fairly the "Financial Statements"):financial position and results of operations of Borrower;
2.4.9.3 as soon as available, but in any event within forty-
(a) as soon as practicable a statement of stockholders' equity and a statement of changes in cash flow of IP Fibre Devices (UK) Limited for such fiscal quarter; (b) income statement of 113 Fibre Devices (UK) Limited for such fiscal quarter; and in any event within thirty (30c) daysbalance sheets of IP Fibre Devices (CK) after the end of each quarter, unaudited interim financial statements Limited as of the end of such fiscal quarter (prepared on a consolidated and consolidating basis, if applicable)- all such statements to be in reasonable detail, including all supporting schedules and comments and any management letters issued with respect to IP Fibre Devices (UK) Limited; the statements and balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer sheets to be true certified as accurate and correctcomplete by the President or chief financial officer of IP Fibre Devices (UK) Limited and acceptable to Lender in accordance with generally accepted accounting principles, such statement to present fairly the financial position and results of operations of IP Fibre Devices (UK) Limited and to be stated in United States dollars;
(b) 2.4.9.4 as soon as practicable (and available, but in any event within one hundred eighty ninety (18090) days) days after the end close of each fiscal year, unqualified audited financial statements as : (a) a statement of the end stockholders' equity and a statement of changes in cash flow of each of Borrower and IP Fibre Devices (UK) Limited for such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm : (b) income statement of independent certified public accountants selected by each of Borrower and reasonably acceptable to Lender, accompanied by any management report from IP Fibre Devices (UK) Limited for such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchangefiscal year; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income accompanied by a report detailing any material contingencies contingencies, if applicable (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, as applicable, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, and, if prepared, accompanied by any management report from such accountants;
(c) at such time as is applicable, promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours, provided Lender and its attorneys and accountants agree to maintain the confidentiality of such books and records. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only. Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender or as permitted by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Agile Software Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement and related statements of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true income and correct;cash flows.
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statementsstatement, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (First Virtual Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 7.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records.
6.3 7.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessaryreasonably necessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 7.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (E Piphany Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, accompanied by reports detailing (i) list of contracts signed listing the licensed products, other products and services, and the associated amounts due as of the end of such month, (ii) financial statements as prepared for the Board of Directors, on a report detailing any departmental basis, derived from the general ledger and (iii) material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence Borrower provided that could reasonably be expected to have a Material Adverse Effectthe details of such disclosure shall not abrogate the attorney client privilege), all of which shall be certified by Borrower's Chief Executive Officer Officer, or President, or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty fifty (180150) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a nationally recognized firm of independent certified public accountants selected by Borrower and reasonably acceptable to LenderBorrower, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at such reasonable times during normal business hourshours as are mutually convenient to Borrower and Lender, subject to Borrower's operational and security requirements. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and recordsrecords at a mutually convenient time.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.necessary or
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof. Notwithstanding the foregoing, Lender acknowledges that Borrower may place a second lien on the Receivables component of the Collateral subordinate to this Agreement, in favor of Connecticut Development Authority for a Convertible Loan.
6.5 Borrower shall not, without Lender's prior written consent, grant any extension of the time of payment of any of the Receivables, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for the payment thereof, or allow any credit or discount whatsoever thereon other than extensions, compromises, discussions or settlements made by borrower in the ordinary course of business of Borrower consistent with past practices or such other commercially reasonable practices as determined in good faith by Borrower. In no event shall any such extensions of time, settlements, or the like convert an otherwise ineligible Receivable into an Eligible Receivable.
6.6 Borrower shall maintain and protect its properties, assets and facilities, including without limitation, its equipment and fixtures, in good order and working repair and condition (taking into consideration ordinary wear and tear) and from time to time make or cause to be made all necessary and proper repairs, renewals and replacements thereto and shall competently manage and care for its property in accordance with prudent industry practices.
6.7 Borrower shall not merge or consolidate with any other entity; nor acquire all or any substantial part of the property of any other person or entity
6.8 Borrower shall not relocate any item of the Collateral, unless twenty (20) days prior to such relocation, Borrower shall first have notified Lender in writing of such proposed relocation and cause to be filed and/or delivered to Lender all Uniform Commercial Code financing statements, certificates or other documents or instruments necessary to continue in effect the first priority perfected security interest of Lender in the Collateral. Any relocation shall be limited to within the continental United States.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Flexiinternational Software Inc/Ct)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctcorrect in all material respects;
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 7.2 Provided that not more than two such inspections or examinations shall take place in any calendar year except upon the occurrence and continuation of an Event of Default, Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records.
6.3 7.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may reasonably be requested by Lender; and take all further action that may be necessary, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower after an Event of Default. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 7.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender other than Permitted Liens and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and other than Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Adesso Healthcare Technology Services Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender or liens permitted by Lender pursuant to Section 9 hereof) and shall give Lender immediate written notice thereof.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):);
(a) as soon as practicable (and in any event within thirty forty-five (3045) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctcorrect to their knowledge;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared with appropriate footnotes(prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to LenderBorrower, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice notice, but not less than five (5) business days, to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; , and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender or contemplated by these Loan Documents) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Neoforma Com Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Subject to Borrower's normal security procedures, Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records. Notwithstanding any provision of this Agreement to the contrary, Borrower shall not be required to disclose, permit the inspection, examination, copying or making extracts of, or discuss, any document, information or other matter that the disclosure of which to Lender or their designated representative, is then prohibited by (a) law, or (b) an agreement binding Borrower that was not entered into the by Borrower for the primary purpose of concealing information from the Lender.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessaryreasonably necessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any Lien placed thereon by LenderLender and Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Homegrocer Com Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty (180) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.[reserved]
6.2 Borrower Parent shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower reasonably related to Lender's security interest in the Collateral at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower at reasonable times during normal business hours to discuss such books of account and records.
6.3 Borrower It will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documentsdocuments reasonably requested by Lender; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessarynecessary or desirable that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, it hereby authorizes Lender to execute and deliver on behalf of it and to file such financing statements, security agreement and other documents without the signature of it either in Lender's name or in its name as its agent and attorney-in-fact. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower It shall protect and defend Borrower's its title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower it or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and Permitted Liens) and shall give Lender immediate written notice thereof.
6.5 It shall maintain and protect its properties, assets and facilities, including without limitation, its Equipment and Fixtures, in good order and working repair and condition (taking into consideration ordinary wear and tear) and from time to time make or cause to be made all necessary and proper repairs, renewals and replacements thereto and shall competently manage and care for its property in accordance with prudent industry practices.
6.6 It shall notify Lender a minimum of thirty (30) days prior to the closing date of a Merger Event and request Lender's consent to the assignment of all of its Secured Obligations hereunder to the successor entity in form and substance satisfactory to Lender. In the event Lender does not consent to such assignment, which consent shall not be unreasonably withheld, and a Merger Event as described in the preceding sentence is closed and consummated, the parties agree it shall prepay the Note in accordance with Section 2.2 hereof; provided that such consent by the Lender shall not be required in any transaction in which the surviving entity or its parent corporation has a Xxxxx'x Bond rating of BA3 or better or a commercially acceptable equivalent measure of creditworthiness as reasonably determined by Lender.
6.7 Other than distributions or dividends from a subsidiary to Borrower, it shall not, without the prior written consent of Lender, such consent not to be unreasonably withheld, declare or pay any cash dividend or make a distribution of cash or property on any class of stock, other than pursuant to employee repurchase plans upon an employee's death or termination of employment or transfer, sell, lease, lend or in any other manner convey any equitable, beneficial or legal interest in any material portion of its assets (except inventory sold in the normal course of business).
6.8 Upon the request of Lender, it shall, during business hours, make the Inventory and Equipment available to Lender for inspection at the place where it is normally located and shall make its log and maintenance records pertaining to the Inventory and Equipment available to Lender for inspection. It shall take all action necessary to maintain such logs and maintenance records in a correct and complete fashion.
6.9 It covenants and agrees to pay when due, all taxes, fees or similar charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against it or Lender with respect to or the Collateral or upon its ownership, possession, use, operation or disposition thereof or upon its rents, receipts or earnings rising therefrom. it shall file on or before the due date therefor all personal property tax returns in respect of the Collateral. Notwithstanding the foregoing, it may contest, in good faith and by appropriate proceedings, taxes for which it maintains adequate reserves therefor.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 7.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records.
6.3 7.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 7.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Data Critical Corp)
COVENANTS OF BORROWER. Except as otherwise expressly provided herein or in the Debentures or the Subscription Agreements, the Borrower covenants and agrees as follows at all times while any in favour of the Secured Obligations remain outstandingLenders as follows:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty (180) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear of all taxes, assessments, liens, mortgages, charges, claims, encumbrances and security interests whatsoever, except for the Security Interest;
(b) not to sell, exchange, transfer, assign, lease or otherwise dispose of or deal in any way with the Collateral or any interest therein, or enter into any agreement or undertaking to do so; except as may be permitted in this Agreement;
(c) to keep the Collateral in good condition, and to keep the Collateral located at the places warranted herein;
(d) to obtain from any legal processfinancially responsible insurance companies and maintain insurance in respect of such risks and in such amounts as the Majority Lenders (as hereinafter defined) may reasonably require from time to time, liens or encumbrances whatsoever and such insurance shall include a standard mortgage clause approved by the Insurance Bureau of Canada, and the Borrower agrees to cause the interest of the Lenders to be noted as its interest might appear on such policies of insurance (except public liability insurance), and to furnish the Lenders upon request with certificates of insurance and certified copies of such policies;
(e) to promptly notify the Lenders of any placed thereon loss or damage to the Collateral, and of any change in any information provided in this Agreement;
(f) to promptly pay all taxes, assessments, rates, levies, payroll deductions, vacation pay, workers' compensation assessments, and any other charges which could result in the creation of a statutory lien or deemed trust in respect of the Collateral;
(g) to deliver to the Lenders such information concerning the Collateral or the Borrower as the Lenders may reasonably request from time to time, including aged lists of Inventory and Accounts and annual and monthly financial statements of the Borrower;
(i) to allow the Lenders to have access to all premises of the Borrower at which Collateral may be located and to inspect the Collateral and all records of the Borrower pertaining thereto from time to time; and
(j) to do, make, execute and deliver such further and other assignments, transfers, deeds, agreements and other documents as may be reasonably required by Lender) the Lenders to establish in favour of the Lenders the Security Interest intended to be created hereby and shall give Lender immediate written notice thereofto accomplish the intention of this Agreement.
Appears in 1 contract
Samples: General Security Agreement (Red Brook Developments LTD)
COVENANTS OF BORROWER. Borrower agrees and covenants that so long as Borrower has any liability to Lender hereunder or under or with respect to the Loan or any agreement, instrument or document executed in connection herewith or so long as Lender may be obligated to make any advancement to Borrower, Borrower shall:
a. Retain or apply all receipts from the operation of its business first to the payment of expenses and agrees as follows obligations incurred in the ordinary course of business;
b. Promptly pay and discharge all taxes, assessments and governmental charges which may be lawfully levied, assessed or imposed upon it or its properties, or upon its income or profits, and all lawful claims for labor, material and services which, if unpaid, might become a lien or charge against the Real Estate located thereon; provided, however, that Borrower shall have the right to contest in good faith any such tax, assessment, charge, levy or claim by appropriate proceedings without the prior payment thereof unless payment is required to contest or to avoid any tax sale;
c. Keep accurate and complete books and records of its business, and maintain the same, together with all valuable papers and records at Borrower’s principal offices;
d. Defend, or cause to be defended, at all times while any adverse claim by a third party relating to the possession of or any interest in the Real Estate;
e. Furnish, or cause to be furnished, to Lender, at Borrower’s expense, the following financial statements and other information of Borrower:
(1) As soon as available and in any event on or before May 15 of each year, copies of the Secured Obligations remain outstanding:
6.1 audited financial reports consisting of a balance sheet and annual statements of income and surplus accounts for Borrower shall furnish to Lender (“Financial Statement”) as of and for the financial statements listed hereinafter, each year then ended certified by a certified public accounting firm and prepared in accordance with generally accepted accounting principles consistently applied on a consistent basis throughout the periods involved in form reasonably acceptable to Lender; provided SEC filed financial statements of Emmis Communications Corporation (“ECC”) are sufficient to satisfy this obligation (and Borrower will have no obligation to provide copies of such SEC filed financial statements) as long as (i) EOC is a wholly owned subsidiary of ECC; and (ii) while the "Financial Statements"):lien exists on the EIB Property, EIB is a wholly owned subsidiary of ECC;
(a2) as soon as practicable Within forty-five (and in any event within thirty (3045) days) after days of the end of each quarter, unaudited interim beginning the quarter ending May 31, 2019 a financial statement as and for the fiscal quarter then ended, prepared and certified by an officer of Borrower, prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved in form reasonably acceptable to Lender; provided SEC filed financial statements as of the end ECC are sufficient to satisfy this obligation (and Borrower will have no obligation to provide copies of such quarter (prepared SEC filed financial statements) as long as EOC is a wholly owned subsidiary of EOC and while the lien exists on the EIB Property, and SEC filed financing statements are sufficient as long as EIB is a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement wholly owned subsidiary of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctECC;
(b3) as soon as practicable Within forty-five (and in any event within one hundred eighty (18045) days) after days of the end of each fiscal yearquarter of Borrower, unqualified audited financial statements beginning with the quarter ending May 31, 2019 a current compliance certificate in the form attached as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, Exhibit D certified by a firm an Officer of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchangeBorrower; and
(d4) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) At such times as Lender may reasonably believes necessary to evaluate Borrower's continuing ability to meet its require, such further information regarding the business affairs and financial obligationsconditions of Borrower as Lender may reasonably require.
6.2 Borrower shall permit f. Permit any authorized representative of Lender and its attorneys and accountants on accountants, after prior reasonable notice to Borrower, to inspect, examine and make copies and extracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such ;
g. Permit any authorized representative of Lender and Lender, including but not limited to its attorneys and accountants shall inspectors, after prior reasonable notice to Borrower, to enter upon and inspect and examine the Real Estate at reasonable times during normal business hours;
h. Give prompt written notice to Lender of any process or action taken or pending whereby a third party is asserting a claim against Borrower or any of their assets which, if adversely determined, would have a material adverse effect on the right financial condition of Borrower;
i. Other than the Revolver Loan or Bxxxxxx Loan, pay when due all liabilities, including trade accounts, in accordance with regular terms, except for claims contested in good faith by appropriate proceedings;
j. Maintain the insurance required by this Agreement and, upon request by Lender, furnish to meet Lender evidence of such insurance coverage and payment of premiums therefor;
k. Comply in all material respects with management all applicable federal, state and officers local statutes, regulations and ordinances;
l. Indemnify and hold Lender harmless from and against any and all claims, losses, damages, setoffs, counterclaims or expenses (including reasonable attorneys’ fees and costs) which Lender may sustain as a result of the Company transactions evidenced by this Agreement, excluding any act or omission of Lender, or because of the material breach of or inaccuracy in any of the representations and warranties contained in this Agreement or in any other document executed in connection herewith or in any other written communication of Borrower to discuss Lender in connection with the transactions secured hereby whether or not any such books inaccuracy was known by Borrower to be incorrect;
m. Indemnify, defend and hold Lender harmless from and against any claim, loss or damage to which Lender is subjected as a result of account the presence of any hazardous, contaminated or toxic materials, waste or substances (including but not limited to asbestos, ureaformaldehyde foamed in place insulation, polychlorinated biphenyls, and records.
6.3 Borrower will all materials termed hazardous wastes or hazardous substances as defined in the Solid Waste Disposal Act of 1985, as from time to time executeamended) or the use, deliver handling, storage, transportation or disposal thereof within or upon the Real Estate, excluding any acts of Lender following Lender’s control and filepossession of the Real Estate, alone or with Lenderviolation of the covenants, representations and warranties contained in this Agreement. For purposes hereof “hazardous, contaminated or toxic materials, waste or substances” will include but not be limited to substances defined as “hazardous substances,” “hazardous waste,” “hazardous materials,” or “toxic substances” in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601 et seq. or any financing statementssimilar federal, security agreements state or other documents; procure any instruments local laws, and/or in the regulations adopted in publications promulgated pursuant to such laws, or documents as such laws or regulations may be requested by Lender; and take all further action that may be necessaryamended, to confirm, perfect, preserve and protect modified or supplemented;
n. Maintain the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction financial condition of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep at a level such that (i) Borrower would not be rendered insolvent if required to perform under the Collateral free terms of the documentation evidencing the Loan, and clear from any legal process, liens or encumbrances whatsoever (ii) Borrower’s cash flow is adequate to perform its obligations under the documentation evidencing the Loan and pay all other indebtedness and obligations of Borrower as they become due except any placed thereon such indebtedness and obligations being contested in good faith and (iii) the assets of Borrower, valued on a fair saleable basis, are equal to or greater than the sum of all liabilities and contingent liabilities required to be included on Borrower’s balance sheet under GAAP;
o. Notify Lender immediately in writing of the initiation of any criminal investigation or proceeding initiated by any federal, state or local agency, department, or instrumentality against (i) Borrower or (ii) any employee of the Borrower if in either (i) or (ii), such investigation or proceeding could have a material adverse effect on the financial condition, business operations or assets of Borrowers or result in the Real Estate being seized pursuant to 18 U.S.C. Sec. 1963,21 U.S.C. Sec. 853,21 U.S.C. Sec. 881, 46 U.S.C. App. Sec. 1904, I.C. 34-4-30.1-1 et seq. or any similar federal, state or local law and/or regulation adopted in publications promulgated pursuant to such laws, or as such laws or regulations may be further amended, modified or supplemented;
p. Permit Lender to advertise in any medium at Lender’s expense indicating Lender as the lender in such form, size and shape as shall be determined by Lender and reasonably approved by Borrower.
q. Permit representatives of Lender to have access upon reasonable advance notice and during regular business hours to Borrower’s premises, facilities and records, including hardware, software and test reports, and to Borrower’s personnel, including systems personnel, all as deemed reasonably necessary or appropriate by Lender and reasonably acceptable to Borrower to review but without interfering with Borrower’s normal business operations.
r. Maintain a Fixed Charge Coverage Ratio of not less than 1.10 to 1.0 for each twelve (12) month period, tested each fiscal quarter beginning May 31, 2019 and each fiscal quarter thereafter. The term “Fixed Charge Coverage Ratio” means, with respect to a fiscal year for Borrower and certain subsidiaries described on Exhibit “C” but excluding other subsidiaries described on Exhibit “C”, a ratio, the numerator of which is Borrower’s trailing twelve (12) month net income on a consolidated basis before interest, taxes, depreciation and amortization, noncash compensation, and other non-cash items of income or expense, less the sum of unfunded capital expenditures, divided by the amount of scheduled principal and interest payments for long term debt (having a maturity in excess of one year) payable during said trailing twelve (12) month period, all as determined in accordance with generally accepted accounting principles consistently applied (“GAAP”), but adjusted on a pro forma basis reasonably acceptable to Lender for any asset acquisition or disposition that occurs during the period with items paid for in cash from asset disposition activity carved out after satisfaction of the prepayment fee, if any, under the Note. Borrower shall give Lender immediate not, without the prior written notice thereof.consent of Lender:
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice during normal business hours to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right on reasonable notice during normal business hours to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Packeteer Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty sixty (3060) days) after the end of each quartermonth: an internally prepared income statement, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated balance sheet, and consolidating basiscash flow statement, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect), all each certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basisFinancial Statements, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified and accompanied by a firm any audit report and opinion of the independent certified public accountants selected by Borrower and reasonably acceptable to LenderBorrower, accompanied by any management report from such accountants;and
(c) promptly after the sending or filing thereofany additional information (including but not limited to tax returns, as the case may be, copies of any proxy income statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regularbalance sheets, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect(d) notwithstanding the foregoing, examine after the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers effective date of the Company initial registration statement covering a public offering of Borrower's securities, the term "Financial Statements" shall be deemed to discuss such books of account refer to only those statements required by the Securities and recordsExchange Commission, to be provided no less frequently than quarterly.
6.3 6.2 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbonBorrower hereby authorizes Lender, photographic after notice to Borrower, to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower.
6.3 Borrower will not create, incur, assume or suffer to exist any senior security interests, mortgage, pledge, license, lien or other reproduction senior encumbrance of any nature whatsoever on any of its assets constituting Collateral hereunder or as to which Lender is entitled under the terms of this Agreement shall be sufficient as to retain a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 senior or first security interest to secure the Loan, excluding purchase money security interests. Borrower shall protect and defend Borrower's title as well as the interest interests of the Lender against all persons claiming any interest interests adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal processattachment or levy, liens or encumbrances whatsoever (except as provided herein or any placed thereon by Lender, or any liens arising by operation of law with respect to any obligations not yet overdue or any other liens consented to in writing by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Telehub Communications Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report report, to the extent applicable, detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctcorrect in all material respects;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limitedlimited to, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours; provided, that not more than two such inspections or examinations shall take place in any calendar year except upon the occurrence and continuation of an Event of Default. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lenderlender; and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender or Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Quokka Sports Inc)
COVENANTS OF BORROWER. Borrower The BORROWER covenants and agrees with EDC that, unless compliance has been waived by EDC, it will so long as follows at all times while any of its obligations hereunder and under the Secured Obligations SECURITY AGREEMENT remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (punctually pay to EDC all principal, interest and any other amounts owing by it under this Agreement and under the SECURITY AGREEMENT and on the dates, at the place, in the currency and in the manner specified herein and therein;
(b) maintain its corporate existence in good standing and not merge, amalgamate or effect any event reorganization with any person other than an affiliate of the BORROWER which does not materially adversely affect the ability of the BORROWER to perform its obligations hereunder and provided any successor company executes, prior to or contemporaneously with the consummation of such transaction, such instruments as are reasonably satisfactory to EDC evidencing the agreement of such successor company to observe and perform all the covenants and obligations of the BORROWER hereunder without the prior consent of EDC;
(c) carry on its business in a proper and businesslike manner and maintain all properties, rights and contracts necessary in the conduct of its business;
(d) within thirty one hundred and twenty (30120) days) days after the end of each quarterfinancial year, unaudited interim deliver to EDC a copy of the BORROWER's audited financial statements as (including a balance sheet and statement of profit and loss), with a certificate of its independent auditors, who will be acceptable to EDC, stating that in their opinion, without any material qualification, the statements fairly present in all material respects the financial position of the end BORROWER and the results of such quarter (prepared on a consolidated and consolidating basisits operations for the financial year reported on, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctin accordance with GAAP consistently applied;
(be) as soon as practicable (upon EDC's request, deliver a declaration, in form and in any event within one hundred eighty (180) days) after the end of each fiscal yearsubstance satisfactory to EDC, unqualified audited financial statements as from an authorized officer of the end BORROWER as to the amounts paid by the BUYER to the BORROWER, pursuant to the HONDA TOOL QUOTE and attaching thereto documentary evidence of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountantsamounts paid;
(cf) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time executedeliver to EDC such other financial and operating reports, deliver statements and fileother information as EDC may reasonably request, alone including, without limitation, information regarding the amounts owing to the BORROWER by the BUYER relating to the HONDA TOOL QUOTE or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; the TOOLING AGREEMENT from time to time and take all further action that may be necessary, to confirm, perfect, preserve quarterly financial statements (including a balance sheet and protect the security interests intended to be granted hereby, statement of profit and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.loss);
Appears in 1 contract
Samples: Loan Agreement (Vs Holdings Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty forty-five (3045) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchangeexchange which reports, to the extent setting forth quarterly or annual financials results, may be furnished to Lender in lieu of the items required under paragraph (a) and (b) above; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 7.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable prior written notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records.
6.3 7.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessary, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 7.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender or Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Battery Express Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(ai) as As soon as practicable after the end of each fiscal year, and in any event within one hundred twenty (120) days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year, and consolidated statements of income, shareholders' equity and cash flows of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and audited (without qualification as to scope) by independent auditors selected by the Company.
(ii) As soon as practicable after the end of each fiscal quarter, and in any event within forty-five (45) days thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such period, consolidated statements of income, consolidated statements of changes in financial condition, a consolidated statement of cash flow of the Company and its subsidiaries and a statement of shareholders' equity for such period and for the current fiscal year to date, and setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, and setting forth in comparative form the budgeted figures, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and signed by the principal financial or accounting officer of the Company.
(iii) As soon as practicable after the end of each month and in any event within thirty (30) days) after days thereafter, a consolidated balance sheet of the end of each quarterCompany and its subsidiaries, unaudited interim financial statements if any as of the end of each such quarter (prepared on period, consolidated statements of income, consolidated statements of changes in financial condition, a consolidated statement of cash flow of the Company and consolidating basisits subsidiaries and a statement of shareholders' equity for such period and for the current fiscal year to date, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including and setting forth in each case in comparative form the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and figures for corresponding periods in any event within one hundred eighty (180) days) after the end of each previous fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures budgeted figures, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and signed by the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, principal financial or otherwise (including, but not limited, to tax returns and names accounting officer of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligationsthe Company.
6.2 Borrower The Company shall permit any authorized representative of Lender and its attorneys attorneys, at its expense, to visit and accountants on reasonable notice inspect the Company's properties, to inspect, examine the its books of account and records of Borrower and to discuss the Company's affairs, finances and accounts with its officers, all at such reasonable times during normal business hours. In additionas may be requested by the Lender upon reasonable notice; provided, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of however, that the Company shall not be obligated pursuant to discuss such books of account and recordsthis Section to provide access to any information which it reasonably considers to be a trade secret or similar confidential information.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, and in the Event of Default, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Iown Holdings Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 follows: Financial Reports. Borrower shall furnish to Lender Agent the Compliance Certificate in the form of Exhibit F monthly within 30 days after the end of each month and the financial statements and reports listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied hereinafter (the "“Financial Statements"):
(a) ”): as soon as practicable (and in any event within thirty (30) 30 days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicableapplicable and customary under accepted accounting practices), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could would reasonably be expected to have a Material Adverse Effect, all certified by Borrower's ’s Chief Executive Officer or Officer, Chief Financial Officer or Vice President of Finance to be true the effect that they have been prepared in accordance with GAAP, except (i) for the absence of footnotes, (ii) that they are subject to normal year-end adjustments, and correct;
(biii) they do not contain certain non-cash items that are customarily included in quarterly and annual financial statements; as soon as practicable (and in any event within one hundred eighty 45 days) after the end of each calendar quarter (180not including the fourth quarter of each fiscal year), unaudited interim financial statements as of the end of such calendar quarter (prepared on a consolidated and consolidating basis, if applicable and customary under accepted accounting practices), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that would reasonably be expected to have a Material Adverse Effect, all certified by Borrower’s Chief Executive Officer, Chief Financial Officer or Vice President of Finance to the effect that they have been prepared in accordance with GAAP, except (i) for the absence of footnotes, and (ii) that they are subject to normal year-end adjustments; as soon as practicable (and in any event within 90 days) after the end of each fiscal year, (i) unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicableapplicable and customary under accepted accounting practices), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by Ernst & Young or a firm of independent certified public accountants selected by Borrower and reasonably acceptable to LenderAgent, accompanied by any management report from such accountants;
(c) ; promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which that Borrower has made available to holders of its shareholders capital stock and copies of any regular, periodic and special reports or registration statements which that Borrower files with the Securities and Exchange Commission or any governmental authority which that may be substituted therefor, or any national securities exchange; and
within sixty (d60) promptlydays of each fiscal year-end, board approved monthly income statement and balance sheet projections for Borrower’s following fiscal year. Any board approved changes to such projections shall be delivered to Lender within thirty (30) days of such board approval; and budgets, operating plans, updates on clinical trials, and other financial information reasonably requested by Agent. The executed Compliance Certificate may be sent via email to Agent at xxxxx@xxxxxxxxxxxx.xxx. Documents required to be delivered pursuant to this Section 7.1 (to the extent any additional informationsuch documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, financial shall be deemed to have been delivered on the date on which Borrower posts such documents, or otherwise provides a link thereto on Borrower’s website at the Borrower’s website address of xxxx://xxx.xxxxxxxxxxxx.xxx/ (including, but not limited, or such other website address as Borrower may provide to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will Agent in writing from time to time executetime); provided, that: (x) to the extent Agent is otherwise unable to receive any such electronically delivered documents, Borrower shall, upon request by Agent, deliver paper copies of such documents to Borrower until a written request to cease delivering paper copies is given by Borrower and file(y) Borrower shall notify Agent by electronic mail of the posting of any such documents or provide to Agent by electronic mail electronic versions (i.e., alone or with Lendersoft copies) of such documents, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessaryin each case, to confirm, perfect, preserve and protect the security interests intended xxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxx.xxx with a copy to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereofxxxxxx@xxxxxxxxxxxx.xxx.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Aveo Pharmaceuticals, Inc.)
COVENANTS OF BORROWER. Borrower agrees with and covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender that, in order to provide further security to Lender and facilitate the financial statements listed hereinaftermaking of any Advances hereunder, each prepared until payment in accordance with generally accepted accounting principles consistently applied (full of all Advances, the "Financial Statements"):Note, accrued interest and all other Obligations and liabilities of Borrower hereunder, Borrower shall:
(a) as soon as practicable (Maintain complete and in any event within thirty (30) days) after the end accurate books and records of each quarterits transactions, unaudited interim financial statements as and will give Lender access during business hours to inspect all books, records and documents of the end of such quarter (prepared on a consolidated Borrower and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected permit Lender to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true make and correcttake away copies thereof;
(b) as As soon as practicable (and available, but in any event within one hundred eighty and twenty (180120) days) days after the end of each fiscal year of the Borrower, provide to Lender a copy of the audited financials of the Borrower for such year, unqualified including a copy of the audited financial statements balance sheet of the Borrower as of at the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and the related audited statements of income and of cash flows, and setting forth in comparative form the corresponding figures flows for the preceding fiscal such year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) Promptly furnish to Lender, at Lender’s request, such additional financial or other information concerning assets, liabilities, operations and transactions of Borrower as Lender may from time to time reasonably request;
(d) Maintain, or cause or arranged to be maintained, on its properties and assets, insurance from reputable companies in such amounts and covering such risks as is prudent and commercially reasonable and arrange for Lender to be named as additional insured under the insurance policies;
(e) Furnish to Lender, promptly after upon becoming aware of the sending or filing thereof, as the case may be, copies existence of any proxy statementscondition or event constituting an Event of Default hereunder, financial statements or reports written notice specifying the nature and period of existence thereof and any action which Borrower has made available is taking or proposes to take with respect thereto;
(f) Promptly notify Lender of (i) any material adverse change in its shareholders and copies of financial condition or the Business; (ii) any regulardefault under any material agreement, periodic and special reports contract or registration statements other instrument to which Borrower files with the Securities and Exchange Commission is a party or by which any governmental authority which may be substituted thereforof its properties are bound, or any national securities exchangeacceleration of any maturity of any indebtedness owing by Borrower, (iii) any material adverse claim against or affecting Borrower or any of its properties; (iv) any regulatory inquiry or action of the BMR which could or may adversely impact the Licenses or Borrower’s ability to legally conduct the Business pursuant to the Regulations; and (v) any litigation, or any claim or controversy which might become the subject of litigation, against Borrower or affecting any of Borrower’s property (including those asserted by governmental authorities), if such litigation or potential litigation might, in the event of an unfavorable outcome, have a material adverse effect on Borrower’s financial condition or the Business or might cause an Event of Default;
(g) Not mortgage, pledge or otherwise encumber or grant a security interest in (except to Lender under this Agreement), or sell or otherwise transfer or remove from the Business office locations (other than in the ordinary course of business), any of the Collateral, or agree to do any of the foregoing, without Lender’s prior written consent;
(h) Not issue, redeem or allow the transfer of any ownership interest in Borrower or grant options to purchase an ownership interest in Borrower, without Lender’s prior written consent;
(i) Not breach or default in the performance of the Licenses; and
(dj) promptlyNot liquidate, dissolve or reorganize, or merge or consolidate with any additional informationother company, financial entity or otherwise (includingperson, but not limited, nor agree to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit do any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and recordsforegoing, without Lender’s prior written consent.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Wolverine Partners Corp.)
COVENANTS OF BORROWER. Borrower The BORROWER covenants and agrees as follows at all times while any of the Secured Obligations remain outstandingwith EDC that, unless compliance has been waived by EDC, it will:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (punctually pay to EDC all principal, interest and any other amounts owing by it to EDC under this Agreement on the dates, at the place, in the currency or currencies and in any event the manner specified herein;
(b) maintain its corporate existence in good standing;
(c) carry on its business in a proper and businesslike manner, and maintain all material properties, material rights, material contracts and material authorizations necessary or useful in the conduct of its business;
(d) within thirty one hundred and twenty (30120) days) days after the end of each quarterfinancial year, unaudited interim deliver to EDC a copy of its audited financial statements as (including a balance sheet and statement of profit and loss), with a certificate of its independent auditors (who shall be auditors experienced in auditing public companies of similar size), stating that in their opinion, without any material qualification, the statements accurately present the financial position of the end BORROWER and the results of such quarter its operations for the financial year being reported on, in accordance with GAAP consistently applied;
(prepared e) keep its assets and business, including the COLLATERAL, insured in the manner and to the extent customary in Canada for similar businesses;
(f) obtain and maintain in force any authorization or registration from any administrative or governmental agency or other body required under the laws of CANADA which is or may become necessary for the BORROWER to fulfill its obligations hereunder and under the CONTRACT;
(g) not consolidates or merge into another corporation, or sell or assign all or substantially all of its assets (determined on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by unless as a report detailing any material contingencies (including result of such merger or consolidation, sale or assignment the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to surviving corporation shall have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer consolidated net worth equal to or Chief Financial Officer greater than the consolidated net worth of the BORROWER immediately prior to be true and correctsuch transaction;
(bh) as soon as practicable (and in any event within one hundred eighty (180) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared provide a FMAR to EDC on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures monthly basis for the preceding fiscal year, certified six (6) months following the date of this Agreement and thereafter on an annual basis if so requested by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountantsEDC;
(ci) promptly after not create or permit to exist or continue any LIENS over the sending COLLATERAL as security for any INDEBTEDNESS of the BORROWER ranking prior to or filing thereofpari passu with the security constituted by the SECURITY AGREEMENT or the KM SECURITY AGREEMENT;
(j) not sell, as lease, assign or otherwise dispose of the case may be, copies COLLATERAL other than:
(i) sale or lease of any proxy statements, financial statements or reports which Borrower has made available COLLATERAL to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchangeKemess Mines Inc.; and
(dii) promptlysale, trade-in or other dispositions of any additional information, financial of the COLLATERAL which becomes obsolete to any supplier or otherwise (including, but not limited, to tax returns and names vendor of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative replacement vehicles or equipment of Lender and its attorneys and accountants on reasonable comparable value upon prior written notice to inspectEDC, examine provided EDC receives a security interest in form and content satisfactory to EDC in such replacement vehicles or equipment;
(k) not, without the books consent of account EDC, and records of Borrower at reasonable times during normal business hours. In additionexcept as otherwise provided for in the CONTRACT, such representative of Lender and its attorneys and accountants shall have cancel or terminate or permit the right to meet with management and officers cancellation or termination of the Company CONTRACT or make or permit the making of any material amendments to discuss such books the CONTRACT which relate to the purchase price, the terms and manner of account payment, the time and records.manner of delivery of any GOODS or SERVICES or which reduce the Canadian benefit derived from the sale of any GOODS or SERVICES;
6.3 Borrower will (l) promptly notify EDC of any material dispute under the CONTRACT of which it becomes aware;
(m) promptly notify EDC of the occurrence of any EVENT OF DEFAULT or POTENTIAL DEFAULT;
(n) comply in all material respects with the requirements of all laws, statutes, regulations, authorizations, approvals, licenses or registrations required to own its properties and assets, including without limitation, the COLLATERAL, and carry on its business as currently carried on and to perform its obligations under the SECURITY AGREEMENT;
(o) in respect of the COLLATERAL;
(i) maintain and preserve all of the COLLATERAL in good repair, working order and condition, subject to normal wear and tear, and, from time to time executetime, deliver make all needful and fileproper repairs, alone or with Lenderrenewals, any financing statementsreplacements, security agreements or other documents; procure any instruments or documents additions and improvements thereto and carry on its business in a proper and efficient manner so as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended COLLATERAL and the earnings, incomes, issues and profits thereof;
(ii) at any reasonable time and from time to be granted herebytime, upon reasonable prior notice, the BORROWER, will permit EDC (at EDC's expense) or any representative thereof to verify the existence and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction state of this Agreement shall be sufficient as a financing statement and may be filed the COLLATERAL in any appropriate office in lieu thereof.manner EDC may consider appropriate;
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times (iii) keep the Collateral COLLATERAL free and clear from of all TAXES, LIENS, assessments and claims ranking prior to or pari passu with the security constituted by the SECURITY AGREEMENT and the KM SECURITY AGREEMENT;
(iv) promptly notify EDC of any legal process, liens loss of or encumbrances whatsoever material damage to the COLLATERAL;
(except v) promptly notify EDC of any placed thereon change in the name of the BORROWER or the location of its chief executive offices;
(vi) take all steps and all actions as may be reasonably required or deemed advisable by Lender) EDC to perfect or more fully evidence EDC's rights and shall give Lender immediate written notice thereofinterest in the COLLATERAL over which a security interest has been granted to EDC under the SECURITY AGREEMENT and the KM SECURITY AGREEMENT.
Appears in 1 contract
Samples: Loan Agreement (Royal Oak Mines Inc)
COVENANTS OF BORROWER. (a) The Borrower hereby covenants that, until the later of (x) the Maturity Date and agrees as follows at (y) the date that all times while of the Obligations are satisfied in full, it will not, without the prior written consent of the Lender:
(i) Sell, convey, or otherwise dispose of any of the Secured Obligations remain outstanding:
6.1 Pledged Assets (other than cash distributions permitted to be retained by the Borrower shall furnish pursuant to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicableSection 2(d), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any interest therein or create, incur, or permit to exist any pledge, mortgage, lien, charge, encumbrance or security interest whatsoever in or with respect to any of the Pledged Assets or the proceeds thereof, other occurrence than that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;created hereby; or
(bii) as soon as practicable (and Consent to or approve the issuance of any additional capital securities in the issuer of the Pledged Securities; or any capital securities convertible voluntarily by the holder thereof or automatically upon the occurrence or non-occurrence of any event within one hundred eighty (180) days) after the end of each fiscal yearor condition into, unqualified audited financial statements as of the end of or exchangeable for, any such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted thereforcapital securities, or any national warrants, options, rights, or other commitments entitling any person to purchase or otherwise acquire any such capital securities exchangeor allow the issuer to take any of the foregoing actions; andor
(diii) promptlyChange its name, identity or organizational structure in any additional information, financial manner that might make any financing or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine continuation statement filed hereunder seriously misleading within the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers meaning of the Company UCC (or any other then applicable provision of the UCC) unless the Borrower has given the Lender at least 90 days' prior written notice thereof or has delivered to discuss the Lender acknowledgment copies of UCC financing statements duly executed and duly filed in each jurisdiction in which UCC filings were required in order to perfect the security interest granted by this Pledge Agreement in the Pledged Assets and have taken all action (or made arrangements to take such books of account and records.
6.3 Borrower will from time action substantially simultaneously with such change if it is impossible to time execute, deliver and file, alone take such action in advance) necessary or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lenderthe Lender to amend such financing statement or continuation statement so that it is not seriously misleading; or
(iv) Change its place of business or chief executive office as set forth in Schedule 2 hereto unless it has given the Lender at least 90 days' prior written notice thereof or has delivered to the Lender acknowledgement copies of UCC financing statements duly executed and take all further action that may be necessary, filed in each of the filing offices in which UCC filings are required in order to confirm, perfect, preserve and protect perfect any of the security interests intended granted hereunder in the Pledged Assets; or
(v) The Borrower warrants and will, at its own expense, defend the Lender's right, title, special property and security interest in and to be granted herebythe Pledged Assets against the claims of any person, and in additionfirm, and for such purposes only, The parties agree that a carbon, photographic corporation or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereofentity.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1. Borrower shall furnish to Lender the Compliance Certificate monthly (in the form attached as Exhibit C) within 30 days of the end of each month and financial statements listed hereinafterin clauses (a), (b) and (c) below, each prepared in accordance with generally accepted accounting principles consistently applied GAAP, subject to the absence of footnotes and to year-end adjustments in the case of interim period financial statements (the "“Financial Statements"”):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartercalendar month, unaudited interim financial statements as of the end of such quarter calendar month (prepared on a consolidated and consolidating basis, if applicable), including including, to the extent prepared by Borrower for its Board of Directors, balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's ’s Chief Executive Officer or Chief Financial Officer to be true present fairly in all material respects the financial condition and correctresults of operations of Borrower and its consolidated Subsidiaries for the period then ended;
(b) as soon as practicable (and in any event within one hundred eighty forty five (18045) daysdays or such shorter period as required by Section 15(d) of the Act) after the end of each calendar quarter, unaudited interim financial statements as of the end of such calendar quarter (prepared on a consolidated basis), including, to the extent prepared by Borrower for its Board of Directors, balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower’s Chief Executive Officer or Chief Financial Officer to present fairly in all material respects the financial condition and results of operations of Borrower and its consolidated Subsidiaries for the period then ended;
(c) as soon as practicable (and in any event within ninety (90) days or such shorter period as required by Section 15(d) of the Act) after the end of each fiscal year, (i) unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including including, to the extent prepared by Borrower for its Board of Directors, balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by along with a firm one-year (prepared on a monthly basis) forecast of independent certified public accountants selected Borrower on a consolidated basis and (ii) budgets, operating plans and other financial information prepared by Borrower and reasonably acceptable to requested by Lender, accompanied by any management report from such accountants;
(cd) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, statements and financial statements or reports which Borrower has made available to its shareholders and copies of any regularnot otherwise provided for hereunder, periodic and special reports or registration statements which that Borrower files with the Securities and Exchange Commission or any governmental authority which that may be substituted therefortherefore, or any national securities exchange; and
(de) promptly, promptly any additional informationinformation or materials provided to Holders of the Series A-2 Preferred Stock, and all other financial information or otherwise (including, but not limited, to including tax returns and names of principal creditors) ), requested by Lender as Lender reasonably believes necessary to evaluate the Collateral or Borrower's ’s continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as The executed Compliance Certificate may be requested by Lender; and take all further action that may be necessary, sent via facsimile to confirm, perfect, preserve and protect the security interests intended Lender at (000) 000-0000. All Financial Statements required to be granted herebydelivered pursuant to clauses (a), (b), (c) and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement (d) shall be sufficient as a financing statement and may sent via e-mail to xxxxxxx@xxxxxxxxxxxx.xxx; provided, that if e-mail is not available or sending such Financial Statements via e-mail is not possible, they shall be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the sent via facsimile to Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal processat: (000) 000-0000, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.attention Chief Credit Officer, referenced Occam Networks, Inc.
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Occam Networks Inc/De)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty forty five (30) days45days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty fifty (180) 150 days) after the end of each fiscal yearyear (180 days for Year End 1998 financials), unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Airspan Networks Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The-parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Information Advantage Software Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including including, balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable prior notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower Borrower, including bank statements, at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary Subordinated Loan and Security Agreement or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and any Permitted Lien) and shall give Lender immediate written notice thereof.
6.5 Borrower shall continue to collect its Accounts in the ordinary course of business.
6.6 Borrower shall maintain and protect its properties, assets and facilities, including without limitation, its Equipment and Fixtures, in good order and working repair and condition (taking into consideration ordinary wear and tear) and from time to time make or cause to be made all necessary and proper repairs, renewals and replacements thereto and shall competently manage and care for its property in accordance with past practices.
6.7 Borrower shall not merge with and into any other entity; or sell or convey all or substantially all of its assets or stock to any other person or entity without notifying Lender a minimum of thirty (30) days prior to the closing date and requesting Lender's consent to the assignment of all of Borrower's Secured Obligations hereunder to the successor entity in form and substance satisfactory to Lender. In the event Lender does not consent to such assignment the parties agree Borrower shall prepay the loan in accordance with Section 2.2 hereof.
6.8 Borrower shall not, without the prior written consent of Lender, such consent not to be unreasonably withheld, declare or pay any cash dividend or make a distribution on any class of stock, other than pursuant to employee repurchase plans upon an employee's death or termination of employment or transfer, sell, lease, lend or in any other manner convey any equitable, beneficial or legal interest in any material portion of the assets of Borrower (except inventory sold in the normal course of business).
6.9 Upon the reasonable request of Lender, Borrower shall, during normal business hours, make the Inventory and Equipment available to Lender for inspection at the place where it is normally located and shall make Borrower's log and maintenance records pertaining to the Inventory and Equipment available to Lender for inspection. Borrower shall take all action necessary to maintain such logs and maintenance records in a current and accurate fashion.
6.10 Borrower covenants and agrees to pay when due, all taxes, fees or other charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against Borrower, Lender or the Collateral or upon Borrower's ownership, possession, use, operation or disposition thereof or upon Borrower's rents, receipts Subordinated Loan and Security Agreement or earnings arising therefrom. Borrower shall file or request any extension on or before the due date therefor all personal property tax returns in respect of the Collateral. Notwithstanding the foregoing, Borrower may contest, in good faith and by appropriate proceedings, taxes for which Borrower maintains adequate reserves therefor.
6.11 Borrower shall not relocate any item of the Collateral unless such relocation shall be within the continental United States and Borrower shall first (a) cause to be filed and/or delivered to the Lender all Uniform Commercial Code financing statements, certificates or other documents or instruments necessary to continue in effect the perfected security interest of the Lender in the Collateral, and (b) have given the Lender no less than ten (10) days prior written notice of such relocation.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (BMJ Medical Management Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement and related statements of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true income and correct;cash flows.
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statementsstatement, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; andexchange;and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (First Virtual Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.Exchange
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the Compliance Certificate monthly (in the form attached as Exhibit H) within five (5) business days of the end of each month and financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied GAAP (except for the absence of footnotes and subject to normal year-end adjustments) (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified certified, on behalf of the Borrower and not in any personal capacity, by Borrower's Chief Executive Officer or Chief Financial Officer to be true the effect that such financial statements present fairly in all material respects the financial condition and correctresults of operations of Borrower in accordance with GAAP;
(b) as soon as practicable (and in any event within one hundred eighty forty five (18045) days) after the end of each calendar quarter, unaudited interim financial statements as of the end of such calendar quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified, on behalf of the Borrower and not in any personal capacity, by Borrower's Chief Executive Officer or Chief Financial Officer to the effect that such financial statements present fairly in all material respects the financial condition and results of operations of Borrower in accordance with GAAP;
(c) as soon as practicable (and in any event within ninety (90) days) after the end of each fiscal year, unqualified unaudited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year;
(d) as soon as practicable (and in any event within one hundred and twenty (120) days) after the end of each fiscal year, (i) audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to LenderBorrower, accompanied by any management report from such accountantsaccountants (ii) budgets, operating plans and other financial information reasonably requested by Lender, provided and limited to such information, which has already been presented to the board of directors of the Borrower or any committee thereof;
(ce) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements statements, financial materials or financial reports which that Borrower has made available to its Board of Directors or common shareholders and copies of any regular, periodic and special reports or registration statements which that Borrower files with the Securities and Exchange Commission or any governmental authority which that may be substituted therefor, or any national securities exchange; and
(df) promptly, any additional informationfinancial information and financial materials reasonably requested by Lender, financial or otherwise (includingincluding without limitation, but not limitedtax returns, to tax returns and names of principal creditors, reports of adverse developments, management letters, communications with stockholders or directors, press releases and registration statements, provided that Borrower may refuse to provide such information or any other information if (i) as Lender reasonably believes necessary Borrower determines that a conflict of interest exists between Borrower and Lender, (ii) the release of such information would cause a violation of any duties of confidentiality to evaluate a third party, (iii) the disclosure would result in the waiver of Borrower's continuing ability attorney client privilege, or (iv) the release of such information to meet Lender would be injurious to Borrower's business. The executed Compliance Certificate may be sent via facsimile to Lender at (650) 473-9194. All Financial Statements required to be delivered pursuant to clauses (a), (b) and (c) shall be sent via e-mail to pshah@herculestech.com; provided, that if e-mail is not available or xxxxxxx xxxx Xxxxxxxxl Statements via e-mail is not possible, they shall be sent via facsimile to Lender at: (650) 473-9194, attention Chief Credit Officer, referenced Omrix Bioxxxxxxxxxxxxxxs, Inc.
7.2 As long as an Event of Default has not occurred and is continuing, Borrower shall be entitled to permit and have certain convertible promissory notes by Borrower to the order of certain of its financial obligationsinvestors in an aggregate principal amount of up to $2,000,000, maturing not earlier than December 31, 2007, to be secured by Borrower's property pari passu with Lender's security interest, provided the aggregate amount outstanding under this Agreement, at the time such security is provided, is not more than $2,000,000.
6.2 7.3 Borrower shall permit any authorized representative of Lender and authorizes, including its attorneys and accountants on reasonable notice accountants, subject to such representatives first signing non-disclosure agreements in a form acceptable to Borrower, to inspect, examine and make copies and abstracts of the financial books of account and financial records of Borrower at reasonable times and upon reasonable notice during normal business hours. In addition, any such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records. In addition, Lender shall be entitled at reasonable times and intervals to consult with and advise the management and officers of Borrower concerning significant business issues affecting Borrower. Such consultations shall not unreasonably interfere with Borrower's business operations. The parties intend that the rights granted Lender shall constitute ["management rights" within the meaning of 29 C.F.R Section 2510.3-101(d)(3)(ii),] but that any advice, recommendations or participation by Lender with respect to any business issues shall not be deemed to give Lender, nor be deemed an exercise by Lender of, control over Borrower's management or policies. Lender shall bear all costs related to the aforesaid inspections, meetings and consultations.
6.3 7.4 Borrower will shall from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements agreements, collateral assignments, notices, control agreements, or other documents; documents to perfect or give the highest priority to Lender's Lien on the Collateral, subject to Permitted Liens and subject to and in accordance with the terms of this Agreement. Borrower shall from time to time procure any instruments or documents as may be reasonably requested by Lender; , and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to carry out more effectively the provisions and purposes of the Loan Documents or the Warrant Agreement or to confirm, perfect, preserve and protect the security interests intended to be Liens granted hereby, hereby and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereofthereby.
6.4 7.5 Borrower shall protect and defend Borrower's title as well as to the interest of the Lender Collateral and Lender's Lien thereon against all persons Persons claiming any interest adverse to Borrower or Lender and (except Persons acting with respect to the Permitted Liens). Borrower shall at all times keep the Collateral and all other property and assets used in Borrower's business or in which Borrower now or hereafter holds any interest free and clear from any legal process, liens process (which is not contested in good faith) or encumbrances Liens whatsoever (except any placed thereon by Lender) for Permitted Liens), and shall give Lender immediate written notice thereofof any legal process affecting the Collateral, such other property and assets, or any Liens thereon.
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Omrix Biopharmaceuticals, Inc.)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctcorrect in all material respects;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; andand Blanket Loan and Security Agr.
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hourshours provided, that not more than two such inspections or examinations shall take place in any calendar year except upon the occurrence and continuation of an Event of Default. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and other Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements statements, excluding footnotes, as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statement of income prepared in accordance with generally accepted accounting principles and accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower, such report to be delivered on a quarterly basis) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all such report certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified (except as it may relate to obtaining additional equity capital) audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies electronic version or hardcopy of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower, in the event Borrower has not signed such financing statements, security agreement or other documentation within ten (10) days from Borrower's receipt thereof. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Furniture Com Inc)
COVENANTS OF BORROWER. Borrower agrees and covenants that so long as Borrower has any liability to Lender hereunder or under or with respect to the Loan or any agreement, instrument or document executed in connection herewith or so long as Lender may be obligated to make any advancement to Borrower, Borrower shall:
a. Promptly pay and agrees as follows discharge all taxes, assessments and governmental charges which may be lawfully levied, assessed or imposed upon it or its properties, or upon its income or profits, and all lawful claims for labor, material and services which, if unpaid, might become a lien or charge against the Real Estate located thereon; provided, however, that Borrower shall have the right to contest in good faith any such tax, assessment, charge, levy or claim by appropriate proceedings without the prior payment thereof unless payment is required to contest or to avoid any tax sale;
b. Defend, or cause to be defended, at all times while any adverse claim by a third party relating to the possession of or any interest in the Real Estate;
c. Furnish, or cause to be furnished, to Lender, at Borrower’s expense, the following financial statements and other information of Borrower:
(1) As soon as available and in any event on or before May 15 of each year, copies of the audited financial reports consisting of a balance sheet and annual statements of income and surplus accounts for Borrower (“Financial Statement”) as of and for the year then ended certified by a certified public accounting firm and prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved in form reasonably acceptable to Lender; provided SEC filed financial statements of Emmis Communications Corporation (“ECC”) are sufficient to satisfy this obligation (and Borrower will have no obligation to provide copies of such SEC filed financial statements) as long as (i) EOC is a wholly owned subsidiary of ECC;
(2) Within forty-five (45) days of the end of each quarter, beginning the quarter ending November 30, 2019, a financial statement as and for the fiscal quarter then ended, prepared and certified by an officer of Borrower, prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved in form reasonably acceptable to Lender; provided SEC filed financial statements of ECC are sufficient to satisfy this obligation (and Borrower will have no obligation to provide copies of such SEC filed financial statements) as long as EOC is a wholly owned subsidiary of ECC;
(3) Within forty-five (45) days of the end of each fiscal quarter of Borrower, beginning with the quarter ending after Borrower satisfies the Fixed Charge Coverage Ratio, a current compliance certificate in the form attached as Exhibit B certified by an Officer of Borrower; and
(4) At such times as Lender may reasonably require, such further information regarding the business affairs and financial conditions of Borrower as Lender may reasonably require.
d. Permit any authorized representative of Lender, including but not limited to its attorneys and inspectors, after prior reasonable notice to Borrower, to enter upon and inspect and examine the Real Estate at reasonable times during normal business hours;
e. Give prompt written notice to Lender of any process or action taken or pending whereby a third party is asserting a claim against the Real Estate, would have a material adverse effect on the value of the Real Estate;
f. Maintain the insurance required by this Agreement and, upon request by Lender, furnish to Lender evidence of such insurance coverage and payment of premiums therefor;
g. Comply in all material respects with all applicable federal, state and local statutes, regulations and ordinances;
1. Indemnify and hold Lender harmless from and against any and all claims, losses, damages, setoffs, counterclaims or expenses (including reasonable attorneys’ fees and costs) which Lender may sustain as a result of the transactions evidenced by this Agreement, excluding any act or omission of Lender, or because of the material breach of or inaccuracy in any of the Secured Obligations remain outstanding:representations and warranties contained in this Agreement or in any other document executed in connection herewith or in any other written communication of Borrower to Lender in connection with the transactions secured hereby whether or not any such inaccuracy was known by Borrower to be incorrect;
6.1 h. Indemnify, defend and hold Lender harmless from and against any claim, loss or damage to which Lender is subjected as a result of the presence of any hazardous, contaminated or toxic materials, waste or substances (including but not limited to asbestos, ureaformaldehyde foamed in place insulation, polychlorinated biphenyls, and all materials termed hazardous wastes or hazardous substances as defined in the Solid Waste Disposal Act of 1985, as from time to time amended) or the use, handling, storage, transportation or disposal thereof within or upon the Real Estate, excluding any acts of Lender following Lender’s control and possession of the Real Estate, or violation of the covenants, representations and warranties contained in this Agreement. For purposes hereof “hazardous, contaminated or toxic materials, waste or substances” will include but not be limited to substances defined as “hazardous substances,” “hazardous waste,” “hazardous materials,” or “toxic substances” in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601 et seq. or any similar federal, state or local laws, and/or in the regulations adopted in publications promulgated pursuant to such laws, or as such laws or regulations may be further amended, modified or supplemented;
i. Notify Lender immediately in writing of the initiation of any criminal investigation or proceeding initiated by any federal, state or local agency, department, or instrumentality against (i) Borrower or (ii) any employee of the Borrower if in either (i) or (ii), such investigation or proceeding could have a material adverse effect on the Real Estate or result in the Real Estate being seized pursuant to 18 U.S.C. Sec. 1963,21 U.S.C. Sec. 853,21 U.S.C. Sec. 881, 46 U.S.C. App. Sec. 1904, I.C. 34-4-30.1-1 et seq. or any similar federal, state or local law and/or regulation adopted in publications promulgated pursuant to such laws, or as such laws or regulations may be further amended, modified or supplemented;
j. Permit Lender to advertise in any medium at Lender’s expense indicating Lender as the lender in such form, size and shape as shall be determined by Lender and reasonably approved by Borrower.
k. At such time as Borrower provides Lender with, and Lender certifies the accuracy of, proforma evidence that Borrower complies with and is able to maintain a Fixed Charge Coverage Ratio of not less than 1.10 to 1.0 for a twelve (12) month period, Lender shall permit Borrower to withdraw Two Million Dollars ($2,000,000.00) for each twelve (12) month period, measured quarterly, that Borrower satisfies such Fixed Charge Coverage Ratio from the account secured by the Pledge Agreement. Only after all Eight Million Dollars ($8,000,000) has been withdrawn from the account secured by the Pledge Agreement, Borrower shall furnish maintain such Fixed Charge Coverage Ratio for each twelve (12) month period, tested each fiscal quarter thereafter. The term “Fixed Charge Coverage Ratio” means, with respect to Lender a fiscal year for Borrower and certain subsidiaries described on Exhibit “C” but excluding other subsidiaries described on Exhibit “C”, a ratio, the financial statements listed hereinafternumerator of which is Borrower’s trailing twelve (12) month net income on a consolidated basis before interest, each prepared taxes, depreciation and amortization, noncash compensation, and other non-cash items of income or expense, less the sum of unfunded capital expenditures, divided by the amount of scheduled principal and interest payments for long term debt (having a maturity in excess of one year) payable during said trailing twelve (12) month period, all as determined in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter“GAAP”), unaudited interim financial statements as of the end of such quarter (prepared but adjusted on a consolidated and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty (180) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and pro forma basis reasonably acceptable to LenderLender for any asset acquisition or disposition that occurs during the period with items paid for in cash from asset disposition activity carved out after satisfaction of the prepayment fee, accompanied by any management report if any, under the Note. Borrower approved bonuses of Seven Million Seven Hundred Forty-Five Thousand Nine Hundred Fifty-Five Dollars ($7,745,955.00) in November, 2019 shall be excluded from such accountants;
(c) promptly after the sending or filing thereofcomputation of the Fixed Charge Coverage Ratio for the period ending November 30, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 2019. Borrower shall permit any authorized representative not, without the prior written consent of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.:
Appears in 1 contract
COVENANTS OF BORROWER. Borrower hereby covenants and agrees as follows that until the Term Loan has been paid and performed in full and this Agreement shall have terminated:
(a) all financial information shall be prepared in accordance with GAAP applied on a consistent basis with prior periods;
(b) Borrower shall give Lender at least thirty (30) days’ prior written notice of any relocation of its state of organization or its chief executive office, and shall at all times while maintain its place of organization and its chief executive office within the United States;
(c) Borrower agrees to maintain product liability insurance reasonably acceptable to Lender and agrees to require Obligors to maintain professional liability and personal injury insurance on the Pledged Units as required in the Transaction Documents. Borrower agrees not to waive the requirement of any insurance coverage under policies maintained by an Obligor pursuant to any Transaction Document.
(d) Borrower shall at all times take all acts necessary to obtain and maintain the first priority Lien of Lender or its designated assignee on the Secured Obligations remain outstanding:Collateral, subject to Permitted Liens;
6.1 (e) Borrower shall, for the term of any Transaction Document, promptly advise Lender of any matter of which Borrower has knowledge which may be detrimental in any material respect to an Obligor’s financial condition or Lender’s first priority Lien on the Collateral (other than the Permitted Liens):
(f) Borrower shall furnish to Lender a certificate of an authorized officer of Borrower stating that he or she has reviewed the financial statements listed hereinafteractivities of Borrower and that, each prepared to the best of his or her knowledge, there exists no Event of Default or event which with notice or lapse of time (or both) would become an Event of Default, substantially in accordance with generally accepted accounting principles consistently applied the form of the certificate attached hereto as Exhibit C (the "Financial Statements"):
(a“Officer’s Certificate”) as soon as practicable (and in any event within thirty (30) daysdays after any request by Lender;
(g) after Borrower shall provide to Lender (i) within sixty (60) days following the end of each fiscal quarter, unaudited interim financial statements a balance sheet as of the end of such fiscal quarter, and statements of income and cash flows for such fiscal quarter (prepared on a consolidated and consolidating basisfor the year to date, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or ’s Chief Financial Officer as being prepared in accordance with GAAP (subject to be true normal year-end adjustments and correct;
the absence of footnotes); (bii) as soon as practicable within ninety (and in any event within one hundred eighty (18090) days) days after the end of each fiscal year, unqualified audited financial statements certified by an independent certified public accountant selected by Borrower; (iii) within five (5) days of the filing thereof, all reports required to be filed with the Securities Exchange Commission; (iv) within thirty (30) days following the end of each quarter, the quarterly report for Pledged Unit placements and usage in the form of Exhibit B attached hereto; (v) within thirty (30) days following the end of each quarter, the quarterly historical chart of total Pledged Units placements and treatments detailing the average daily usage per Pledged Unit; (vi) within twenty (20) days after the end of each month, summaries of the monthly aging and the status of any charge-offs of receivable balances in which Lender has an interest, by usage or services contracts accounts, as well as in the aggregate, and other source information from which the aforementioned, summaries are prepared; (vii) within twenty (20) days after the end of each month, a monthly report, including the summary of bxxxxxxx to each Obligor and the status of each Transaction, on locations of Pledged Units; and (viii) within twenty (20) days after the end of each month, monthly listing of cancelled or expired Transactions, in each instance, by name, location and reason. Each of the financial statements delivered pursuant to clauses (i) or (ii) shall be accompanied by an Officer’s Certificate in the form of Exhibit C hereto of the Borrower’s Chief Financial Officer, stating that as of the date thereof there exists no Event of Default or event which, with the giving of notice or passage of time or both would become an Event of Default or, if such Event of Default or event exists, describing such occurrence and the steps being taken by Borrower in respect thereof;
(h) Borrower shall, at all reasonable times and upon reasonable notice, allow Lender by or through any of its officers, agents, employees, attorneys, or accountants to (i) examine, inspect, and make extracts from Borrower’s books and other records, including, without limitation, the tax returns of Borrower; (ii) arrange for verification of Borrower’s accounts, under reasonable procedures coordinated with Borrower or Borrower’s auditors; and (iii) examine and inspect the Collateral, wherever located; provided, however, unless an Event of Default occurs and is continuing Bank shall be limited to one inspection of such books and records during any calendar quarter.
(i) Borrower shall promptly and fully report to Lender in writing if any Pledged Unit is lost or damaged (where the estimated repair costs would exceed the greater of ten percent (10%) of the original Pledged Unit cost or Ten Thousand Dollars ($10,000)), or is otherwise involved in an accident causing personal injury or property damage;
(j) Borrower shall make or cause to be made all filings in respect of, and pay or cause to be paid when due, all taxes, assessments, fines, fees and other liabilities (including all taxes and other claims in respect of the Transactions and the related Pledged Units) unless being reasonably contested;
(k) Borrower shall remain in full compliance with all laws and regulations applicable to it including, without limitation: (a) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (I) listed on the Specially Designated Nationals and Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation, or (II) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar Executive Orders, and (b) compliance with all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidelines on BSA compliance and on the prevention and detection of money laundering violations;
(l) Borrower shall, within thirty (30) days from the date hereof establish and thereafter maintain a lockbox account (the “Controlled Account”) with a bank satisfactory to Lender into which all Payments shall be made and shall cause such bank to enter into a control agreement with Lender (a “Control Agreement”), in form and substance satisfactory to Lender.
(m) Borrower shall within sixty (60) days upon the return of any Pledged Unit by an Obligor either (i) have delivered such Pledged Unit to a new Obligor pursuant to a usage agreement or other Transaction Document pledged to Lender hereunder, or (ii) have delivered to Lender as replacement collateral for the obligations of Borrower hereunder, substitute Transaction Documents and Pledged Units.
(n) Borrower shall perform in all material respects all of its obligations arising by contract, agreement, or imposed by applicable law, rule or regulation with respect to any of the Pledged Units;
(o) The proceeds of the Term Loan shall be used for working capital and general corporate purposes of the Borrower, but shall not be used for (i) distributions to the holders of the Company’s equity or (ii) the non-scheduled payment of funded indebtedness.
(p) Borrower shall maintain, as of the end of such year each calendar quarter, a minimum aggregate amount of $500,000 of Eligible Accounts Receivable and Borrower shall provide Lender with a quarterly statement evidencing the same within 20 days following the end of each calendar quarter.
(prepared on a consolidated and consolidating basisq) Borrower shall not sell, if applicable)lease, including balance sheet and related statements transfer or dispose of income and cash flowsany of its properties or assets, and setting forth except in comparative form the corresponding figures for the preceding fiscal year, certified by a firm ordinary course of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountantsbusiness;
(cr) promptly after the sending Borrower shall not create or filing thereofsuffer to exist any Lien upon or against any of its property or assets, as the case may bewhether now owned or hereafter acquired, copies of except for Permitted Liens;
(s) Borrower shall not create, incur or have outstanding any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted thereforobligation for borrowed money, or any national securities exchangeindebtedness of any kind, that will mature prior to the Maturity Date; provided, that this Section shall not apply to (i) the indebtedness to the Lender or any affiliate of the Lender; (ii) the indebtedness existing on the Closing Date; and (iii) indebtedness to trade creditors incurred in the ordinary course of business.
(t) Borrower shall provide written notice to Lender of any request to Perseus Partners VII, L.P. for its consent to create, incur or have outstanding any obligation for borrowed money or any indebtedness of any kind; provided, that this Section shall not apply to (i) the indebtedness to the Lender or any affiliate of the Lender; (ii) the indebtedness existing on the Closing Date.
(u) Borrower shall not modify the terms of its existing indebtedness to mature on or prior to the Maturity Date.
(v) Borrower shall not directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower, except for transactions that are in the ordinary course of Borrower’s business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arms-length transaction with a non-affiliated Person;
(w) Borrower shall not pay any dividends or make any distribution or payment on account of or in redemption, retirement or repurchase of any capital stock;
(x) Borrower shall file (within forty-five (45) days from the date hereof with respect to current Pledged Units and within fifteen (15) days for new Pledged Units), a UCC-1 Financing Statement for each Obligor (in the state of organization or residence for such Obligor) providing notice that the Pledged Units remain the property of the Borrower and subject to a lien in favor of the Lender and subject to the Permitted Liens;
(y) Borrower shall from time to time execute and deliver such further documents and do such further acts and things as Lender may reasonably request in order to fully effect the purposes of this Agreement and to protect Lenders’ interest in the Transaction Documents and Pledged Units; and
(dz) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) Borrower shall provide such other information as Lender may reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligationsrequest.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty forty-five (3045) days) after the end of each quarterfiscal quarter (except the last quarter of Borrower's fiscal year), unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, statements or financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional financial information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as is reasonably necessary for Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 7.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower reasonably related to Lender's security interest in the Collateral at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower at reasonable times during normal business hours to discuss such books of account and records.
6.3 7.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documentsdocuments reasonably requested by Lender; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessarynecessary or desirable that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 7.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Handspring Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty forty-five (3045) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-act for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Flycast Communications Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each calendar quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer or Controller to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, as applicable and at such time as Borrower's accountants present financial results in such format, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower that could result in damages or costs to Borrower of $100,000.00 or more
(e) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.necessary or
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Niku Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating consolidating, basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.or
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Acusphere Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Vignette Corp)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 (a) TPR shall timely file with the Securities and Exchange Commission the reports required to be filed by it under the Securities Act of 1933, as amended and the Exchange Act of 1934, as amended (the "SEC Filings"). In the event that TPR fails to timely make its SEC Filings. Borrower shall thereafter furnish to Lender the financial statements listed hereinafter, ; each prepared in accordance with generally accepted accounting principles consistently applied GAAP (the "Financial Statements"):
(ai) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Operating Officer to be true and correct;; and
(bii) as soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(cb) Borrower shall furnish to Lender promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which that Borrower has made available to its shareholders stockholders and copies of any regular, periodic and special reports or registration statements which that Borrower files with the Securities and Exchange Commission or any governmental authority which that may be substituted therefor, or any national securities exchange; and;
(dc) Borrower shall furnish to Lender promptly, any additional information, financial or otherwise (including, but not limited, to including tax returns and names of principal creditors) ), requested by Lender as Lender reasonably believes necessary to evaluate the Collateral or Borrower's continuing ability to meet its financial obligations. All Financial Statements required to be delivered pursuant to clauses (i) and (ii) shall be sent by e-mail to xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx; provided, that if e-mail is not available or sending such Financial Statements by e-mail is not possible, they shall be sent by facsimile to Lender at: (000) 000-0000, attention Venture Financials, referenced.
6.2 8.2. From and after the Effective Date and until the Secured Obligations are fully satisfied, Borrower shall maintain a maximum ratio of Total Indebtedness to Net Worth, as measured on the last day of each fiscal quarter, of not more than 1.25 : 1.
8.3. Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records. In addition, Lender shall be entitled at reasonable times and intervals to consult with and advise the management and officers of Borrower concerning significant business issues affecting Borrower. Such consultations shall not unreasonably interfere with Borrower's business operations. The parties intend that the rights granted Lender shall constitute "management rights" within the meaning of 29 C.F.R Section 2510.3-101(d)(3)(ii), but that any advice, recommendations or participation by Lender with respect to any business issues shall not be deemed to give Lender, nor be deemed an exercise by Lender of, control over Borrower's management or policies.
6.3 8.4. Borrower will from time to time shall execute, deliver and file, alone or with Lender, any financing statements, security agreements agreements, assignments, notices, control agreements, or other documents; documents to perfect or give priority to Lender's Lien on the Collateral, subject only to the Permitted Liens. Borrower shall from time to time procure any instruments or documents as may be reasonably requested by Lender; , and take all further action that may be necessary, reasonably necessary to carry out more effectively the provisions and purposes of this Agreement or any other Loan Document or to confirm, perfect, preserve and protect the security interests intended to be Liens granted hereby, hereby and in thereby. In addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, assignments, notices, control agreements, security agreements and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, facsimile, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 8.5. Borrower shall protect and defend Borrower's title as well as to the interest of the Lender Collateral and Lender's Lien thereon against all persons Persons claiming any interest adverse to Borrower or Lender and Lender. Borrower shall at all times keep the Collateral and all property and assets used in Borrower's business or in which Borrower now or hereafter holds any interest free and clear from any legal process, liens process or encumbrances Liens whatsoever (except any placed thereon by Lender) for Permitted Liens), and shall give Lender immediate written notice thereofof any legal process affecting the Collateral, such other property and assets, or any Liens thereon (except for Permitted Liens).
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quarter, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Officer, Chief Financial Officer or Controller to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed flied in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Nextcard Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:.
6.1 5.1 Borrower shall maintain the Tenant Improvements in good operating condition, repair, and appearance and protect same from deterioration, other than normal wear and tear. Borrower shall not use the Tenant Improvements or permit its use for any purpose other than for which it was designed.
5.2 Borrower covenants and agrees to pay when due, all taxes, fees or other charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against Borrower, Lender or the Tenant Improvements or upon the ownership, possession, use operating or disposition thereof or upon the rents, receipts or earnings arising therefrom or upon or with respect to the amounts payable to the Lender pursuant to the Note and this Agreement (excluding any taxes based solely upon Lender"s net income relating thereto).
5.3 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as As soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated and consolidating basismonthly income statement, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement and statement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effectcash flows, all certified by Borrower's Borrower"s Chief Executive Officer or Chief Financial Officer to be true and correct;; and
(b) as As soon as practicable (and in any event within one hundred eighty twenty (180120) days) after the end of each fiscal year, unqualified audited financial statements balance sheets as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements statement of income of loss, retained earnings or deficit and changes in cash flowsflows of Borrower for such year, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified and accompanied by a firm any audit report and opinion of the independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;Borrower.
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, Promptly any additional information, financial or otherwise (including, including but not limitedlimited to, to tax returns returns, income statements, balance sheets, and names of principal creditors) creditors as requested by Lender that Lender reasonably believes necessary to evaluate Borrower's Borrower"s continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect5.4 Notwithstanding the foregoing, examine after the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers effective date of the Company initial registration statement covering a public offering of Borrower"s securities, the term "Financial Statements" shall be deemed to discuss such books of account refer to only those statements required to be filed with the Securities and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessaryExchange Commission, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereofprovided no less frequently than quarterly.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Master Lease Agreement (3 Dimensional Pharmaceuticals Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim summary financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender (other than Senior Creditors) and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and other than Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Be Free Inc)
COVENANTS OF BORROWER. Borrower agrees and covenants and agrees that so long as follows at all times while Borrower has any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish liability to Lender hereunder or under or with respect to the financial statements listed hereinafterLoan or any agreement, each prepared instrument or document executed in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):connection herewith or so long as Lender may be obligated to make any advancement to Borrower, Borrower shall:
(a) as Promptly pay and discharge all taxes, assessments and governmental charges which may be lawfully levied, assessed or imposed upon it or its properties, or upon its income or profits, and all lawful claims for labor, material and services which, if unpaid, might become a lien or charge against the Real Estate or the Improvements located thereon; provided, however, that Borrower shall have the right to contest in good faith any such tax, assessment, charge, levy or claim by appropriate proceedings without the prior payment thereof unless payment is required to contest or to avoid any tax sale;
(b) Keep accurate and complete books and records, and maintain the same, together with all valuable papers and records at Borrower's principal offices;
(c) Defend, or cause to be defended, at all times any adverse claim by a third party relating to the possession of or any interest in the assets of Borrower;
(d) Furnish, or cause to be furnished, to Lender, at Borrower's expense, the following financial statements and other information of Borrower:
(1) As soon as practicable (available and in any event within thirty (30) daysdays following filing, copies of the federal income tax returns of Borrower;
(2) after Within ninety (90) days following the end of each quartercalendar year, unaudited interim audited operating and financial statements as of the end of such quarter (prepared on a consolidated and consolidating basis, if applicable)Borrower, including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty (180) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related annual statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, surplus accounts (certified by a firm of independent certified public accountants selected by Borrower and reasonably accountant acceptable to Lender), accompanied by any management report from such accountantsall prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved;
(c3) promptly after At such times as Lender may require, such further information regarding the sending or filing thereof, business affairs and financial conditions of Borrower as the case Lender may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; andrequire;
(de) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit Permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and extracts of the books of account and records of Borrower at reasonable times during normal business hours;
(f) Permit any authorized representative of Lender, including but not limited to its attorneys and inspectors, to enter upon and inspect and examine the Real Estate and Improvements at reasonable times during normal business hours;
(g) Give prompt written notice to Lender of any process or action taken or pending whereby a third party is asserting a claim against Borrower or any of its assets, which would have a material affect on Borrower or its ability to pay the Loan;
(h) Pay when due all liabilities, including trade accounts, in accordance with regular terms, except for claims contested in good faith by appropriate proceedings;
(i) Maintain the insurance required by this Agreement and, upon request by Lender, furnish to Lender evidence of such insurance coverage and payment of premiums therefor;
(j) Comply with all applicable federal, state and local statutes, regulations and ordinances;
(k) Comply with all room agreements and leases for the Real Estate and Improvements;
(l) Pay to Lender all proceeds (not to exceed the balance due under the Note and other expenses due Lender) received from casualty and business interruption insurance or condemnation proceedings to be held and disbursed in accordance with this Agreement and the Loan Documents;
(m) Indemnify and hold Lender harmless from and against any and all claims, losses, damages, setoffs, counterclaims or expenses (including attorneys' fees and costs) which Lender may sustain as a result of the transactions evidenced by this Agreement or because of the breach of or inaccuracy in any of the representations and warranties contained in this Agreement or in any other document executed in connection herewith or in any other written communication of Borrower to Lender in connection with the transactions secured hereby whether or not any such inaccuracy was known by Borrower to be incorrect;
(n) Indemnify, defend and hold Lender harmless from and against any claim, loss or damage to which Lender is subjected as a result of the presence of any material or substance which may be considered hazardous or toxic (including but not limited to asbestos, ureaformaldehyde foamed in place insulation, polychlorinated biphenyls, and all materials termed hazardous wastes or hazardous substances as defined in the Solid Waste Disposal Act of 1985, as from time to time amended) or the use, handling, storage, transportation or disposal thereof within or upon any real estate owned by Borrower or violation of the covenants, representations and warranties contained in this Agreement;
(o) Maintain a Debt Service Coverage Ratio (as hereinafter defined) of not less than 1.50 for the operation of the Real Estate and Improvements. Debt Service Coverage Ratio shall mean a number in which (i) the numerator is the sum of pre-tax aggregate rent, receipts and other revenues accrued for the preceding calendar year from normal operations of the Real Estate and Improvements (excluding insurance proceeds or condemnation awards or sales of any part of the Real Estate) less the sum of all operating expenses, maintenance costs, insurance premiums, real estate taxes and assessments and other costs, expenses and expenditures attributable to the ownership and management of the Real Estate and Improvements paid or accrued during such period, calculated in accordance with generally accepted accounting principles but excluding any payments of principal or interest on the Loan and on any secondary financing approved by Lender, if any, depreciation or other non-cash charges and income taxes, and (ii) the denominator is the annual aggregate amount of principal and interest payments on the Loan; and
(p) Notify Lender immediately in writing of the initiation of any criminal investigation or proceeding initiated by any federal, state or local agency, department, or instrumentality against (i) Borrower, (ii) Manager, or (iii) any employee of Borrower or Manager, if such investigation or proceeding could have a material adverse effect on the financial condition, business operations or assets of Borrower or result in the Collateral being seized pursuant to 18 U.S.C. Sec. 1963,21 U.S.C. Sec. 853,21 U.S.C. Sec. 881, 46 U.S.C. App. Sec. 1904, I.C. 34-4-30.1-1 et. seq. or any similar federal, state or local law and/or regulation adopted in publications promulgated pursuant to such laws, or as such laws or regulations may be further amended, modified or supplemented. In addition, such representative Borrower covenants to Lender that so long as Borrower has any liability to Lender hereunder or under or with respect to the Loan or any agreement, instrument or document executed in connection herewith, Borrower shall not, without the prior written consent of Lender:
(1) Create or permit to exist any mortgage, pledge, security interest, title retention device or other encumbrance on any interest of Borrower in the Real Estate and Improvements, except for any mortgage or security interest held by Lender and those liens and encumbrances as shall be approved in writing by Lender in its attorneys sole discretion;
(2) Dispose of any of its assets or properties other than in the ordinary course of business for fair value;
(3) Directly or indirectly make (i) any loan, gift, distribution, transfer or advance of cash or other real, personal or intangible property, (ii) any transfer of any other benefit or thing of value to any person except for fair value received by Borrower; it is intended that this paragraph prohibit, by way of example and accountants shall have not by way of limitation, any payment by Borrower characterized as a commission or referral fee, and any payments by Borrower characterized as the right consideration for a purchase to meet with management and officers the extent that such payment is not bona fide or exceeds the real value received by the Borrower; or (iii) make any distribution or payment to any shareholders of Borrower if such payment would violate the terms of the Company to discuss such books of account and recordsDebt Service Coverage Ratio required under this Agreement.
6.3 Borrower will from time (4) Incur, assume, guarantee or otherwise become liable for any obligation or the obligation of any person or entity except in connection with the endorsement of checks for deposit in the ordinary course of business and other similar collection transactions in the ordinary course of business;
(5) Make any financial arrangements for borrowed money or otherwise through any other financial institution entity or party which is secured by the Real Estate or the Improvements;
(6) Take any action, allow any event to time executeoccur or permit a condition to exist which could materially and adversely affect Borrower's ability to complete its obligations under the terms of this Agreement, deliver and filethe Note, alone Mortgage or with Lenderany other instruments, any financing statements, security agreements or other documentsdocuments required of Borrower hereunder;
(7) Change the nature of Borrower's current business;
(8) Make any change in the key management of Borrower, which key management is currently Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx;
(9) Make any change in the key management of Manager, which key management is currently Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx; procure any instruments or
(10) Permit the control or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended ownership of Manager to be granted hereby, and vested in addition, and for such purposes only, The parties agree that a carbon, photographic or anyone other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereofthan Xxxxxx X. Xxxxxxx.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
COVENANTS OF BORROWER. Borrower agrees with and covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender that, in order to provide further security to Lender and facilitate the financial statements listed hereinaftermaking of any Advances hereunder, each prepared until payment in accordance with generally accepted accounting principles consistently applied (full of all Advances, the "Financial Statements"):Note, accrued interest and all other Obligations and liabilities of Borrower hereunder, Borrower shall:
(a) as soon as practicable (Maintain complete and in any event within thirty (30) days) after the end accurate books and records of each quarterits transactions, unaudited interim financial statements as and will give Lender access during business hours to inspect all books, records and documents of the end of such quarter (prepared on a consolidated Borrower and consolidating basis, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected permit Lender to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true make and correcttake away copies thereof;
(b) as As soon as practicable (and available, but in any event within one hundred eighty and twenty (180120) days) days after the end of each fiscal year of the Borrower, provide to Lender a copy of the audited financials of the Borrower for such year, unqualified including a copy of the audited financial statements balance sheet of the Borrower as of at the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and the related audited statements of income and of cash flows, and setting forth in comparative form the corresponding figures flows for the preceding fiscal such year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) Promptly furnish to Lender, at Lender’s request, such additional financial or other information concerning assets, liabilities, operations and transactions of Borrower as Lender may from time to time reasonably request;
(d) Maintain, or cause or arranged to be maintained, on its properties and assets, insurance from reputable companies in such amounts and covering such risks as is prudent and commercially reasonable and arrange for Lender to be named as additional insured under the insurance policies;
(e) Furnish to Lender, promptly after upon becoming aware of the sending or filing thereof, as the case may be, copies existence of any proxy statementscondition or event constituting an Event of Default hereunder, financial statements or reports written notice specifying the nature and period of existence thereof and any action which Borrower has made available is taking or proposes to take with respect thereto;
(f) Promptly notify Lender of (i) any material adverse change in its shareholders and copies of financial condition or business; (ii) any regulardefault under any material agreement, periodic and special reports contract or registration statements other instrument to which Borrower files with the Securities and Exchange Commission is a party or by which any governmental authority which may be substituted thereforof its properties are bound, or any national securities exchangeacceleration of any maturity of any indebtedness owing by Borrower, (iii) any material adverse claim against or affecting Borrower or any of its properties; (iv) any regulatory inquiry or action of the BMR which could or may adversely impact the Licenses or Borrower’s ability to legally conduct its business pursuant to the Regulations; and (v) any litigation, or any claim or controversy which might become the subject of litigation, against Borrower or affecting any of Borrower’s property (including those asserted by governmental authorities), if such litigation or potential litigation might, in the event of an unfavorable outcome, have a material adverse effect on Borrower’s financial condition or business or might cause an Event of Default;
(g) Not mortgage, pledge or otherwise encumber or grant a security interest in (except to Lender under this Agreement), or sell or otherwise transfer or remove from the business office locations (other than in the ordinary course of business), any of the Collateral, or agree to do any of the foregoing, without Lender’s prior written consent;
(h) Not issue, redeem or allow the transfer of any ownership interest in Borrower or grant options to purchase an ownership interest in Borrower, without Lender’s prior written consent;
(i) Not breach or default in the performance of the Licenses; and
(dj) promptlyNot liquidate, dissolve or reorganize, or merge or consolidate with any additional informationother company, financial entity or otherwise (includingperson, but not limited, nor agree to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit do any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and recordsforegoing, without Lender’s prior written consent.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Wolverine Partners Corp.)
COVENANTS OF BORROWER. Until payment in full of the Note and all other sums required to be paid by Borrower covenants under the Security Instruments and this Agreement, Borrower shall:
2.4.1 cause the Improvements to be constructed, equipped and completed, diligently and continuously and with all reasonable dispatch, in accordance with all laws, rules, regulations and requirements of all governmental authorities having jurisdiction with respect to the Improvements, the appropriate Board of Fire Underwriters, and the Plans and any modifications and additions to the Plans which may be deemed necessary or desirable by Lender and/or Lender's construction representative, which modifications and additions to the Plans, Borrower agrees as follows to provide within ten (10) days after Lender's request therefor;
2.4.2 in any event, cause the Improvements to be completed and ready for operation and occupancy on or before April 28, 2001 (the "Construction Completion Date");
2.4.3 make no material changes or amendments to the Plans and make no change orders without the prior written approval of Lender;
2.4.4 with respect to any amendments or supplements to the Plans, to which Lender shall have given its prior written approval, file all such amendments and supplements with, and obtain all necessary approvals from, all governmental authorities having jurisdiction thereof and promptly deliver true copies thereof to Lender;
2.4.5 permit Lender and its representatives to enter upon the Premises and inspect the Improvements at all times while during normal business hours and examine all detailed plans, shop drawings, specifications and other books and records relating to the Premises and the Improvements;
2.4.6 not enter into any lease with respect to the Premises (excepting equipment leases) without first having submitted to the Lender a copy of said lease together with a duly executed subordination of lease agreement;
2.4.7 within five (5) days after construction of the Secured Obligations remain outstandingfoundation has been completed, deliver a certificate from an engineer or surveyor satisfactory to Lender to the effect that no part of the foundation or Improvements encroaches on any adjoining parcel of land, that the foundation is located on the Premises in accordance with the Plans, and that all Improvements then constructed are contained within the boundaries of the Premises and are in compliance with all applicable setback (front, side, and rear) requirements;
2.4.8 permit Lender to erect an appropriate sign on the Premises at such location as Lender, in its discretion, may determine, indicating that the Improvements are being financed by Lender;
2.4.9 furnish or cause to be furnished to Lender:
6.1 2.4.9.1 as soon as available, but in any event upon filing with applicable taxing authorities, a copy of each federal and state tax return of Borrower shall furnish and any guarantors;
2.4.9.2 as soon as available, but in any event within fifteen (15) days after the close of each fiscal month: (a) a statement of stockholders' equity and a statement of changes in cash flow of Borrower for such fiscal month; (b) income statement of Borrower for such fiscal month; and (c) balance sheets of Borrower as of the end of such fiscal month-all such statements to be in reasonable detail, including all supporting schedules and comments and any management letters issued with respect to Borrower; the statements and balance sheets to be certified as accurate and complete by the President or chief financial officer of Borrower and acceptable to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied principles, such statement to present fairly the financial position and results of operations of Borrower;
2.4.9.3 as soon as available, but in any event within forty- five (45) days after the "Financial Statements"):close of each fiscal quarter:
(a) as soon as practicable a statement of stockholders' equity and a statement of changes in cash flow of IP Fibre Devices (UK) Limited for such fiscal quarter; (b) income statement of 113 Fibre Devices (UK) Limited for such fiscal quarter; and in any event within thirty (30c) daysbalance sheets of IP Fibre Devices (CK) after the end of each quarter, unaudited interim financial statements Limited as of the end of such fiscal quarter (prepared on a consolidated and consolidating basis, if applicable)- all such statements to be in reasonable detail, including all supporting schedules and comments and any management letters issued with respect to IP Fibre Devices (UK) Limited; the statements and balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer sheets to be true certified as accurate and correctcomplete by the President or chief financial officer of IP Fibre Devices (UK) Limited and acceptable to Lender in accordance with generally accepted accounting principles, such statement to present fairly the financial position and results of operations of IP Fibre Devices (UK) Limited and to be stated in United States dollars;
(b) 2.4.9.4 as soon as practicable (and available, but in any event within one hundred eighty ninety (18090) days) days after the end close of each fiscal year, unqualified audited financial statements as : (a) a statement of the end stockholders' equity and a statement of changes in cash flow of each of Borrower and IP Fibre Devices (UK) Limited for such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm : (b) income statement of independent certified public accountants selected by each of Borrower and reasonably acceptable to Lender, accompanied by any management report from IP Fibre Devices (UK) Limited for such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchangefiscal year; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessary, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles GAAP consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by LenderLender and Permitted Liens) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Cacheflow Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 7.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial Statements"):
(a) as soon as practicable (and in any event within thirty (30) days) days after the end of each quartermonth: an internally prepared income statement, unaudited interim financial statements as of the end of such quarter (prepared on a consolidated balance sheet, and consolidating basiscash flow statement, if applicable), including balance sheet accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect), all each certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correctcorrect in all material respects;
(b) as As soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basisFinancial Statements, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified and accompanied by a firm any audit report and opinion of the independent certified public accountants selected by Borrower and reasonably acceptable to Lender, accompanied by any management report from such accountantsBorrower;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 7.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, upon reasonable notice such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers of the Company Borrower to discuss such books of account and records.
6.3 7.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be reasonably necessary, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents (reasonably necessary to confirm, continue, perfect, preserve and protect the security interests granted hereby) without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 7.4 Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender (other than in relation to Senior Debt and Permitted Liens) and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender, or any liens arising by operation of law with respect to any obligations not yet overdue or any other liens consented to in writing by Lender, or relating to Senior Debt and Permitted Liens) and shall give Lender immediate prompt written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Egroups Inc)
COVENANTS OF BORROWER. Borrower covenants and agrees as follows at all times while any of the Secured Obligations remain outstanding:
6.1 Borrower shall furnish to Lender the financial statements listed hereinafter, each prepared in accordance with generally accepted accounting principles consistently applied (the "Financial StatementsFINANCIAL STATEMENTS"):
(a) as soon as practicable (and in any event within thirty (30) days) after the end of each quartermonth, unaudited interim financial statements as of the end of such quarter month (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower's Chief Executive Officer or Chief Financial Officer to be true and correct;
(b) as soon as practicable (and in any event within one hundred eighty ninety (18090) days) after the end of each fiscal year, unqualified audited financial statements as of the end of such year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Borrower borrower and reasonably acceptable to Lender, provided that Lender shall agree to the engagement of any of the Big 5 firms selected by the Borrower, accompanied by any management report from such accountants;
(c) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports which Borrower has made available to its shareholders and copies of any regular, periodic and special reports or registration statements which Borrower files with the Securities and Exchange Commission or any governmental authority which may be substituted therefor, or any national securities exchange; and
(d) promptly, any additional information, financial or otherwise (including, but not limited, to tax returns and names of principal creditors) as Lender reasonably believes necessary to evaluate Borrower's continuing ability to meet its financial obligations.
6.2 Borrower shall permit any authorized representative of Lender and its attorneys and accountants on reasonable prior notice to inspect, examine and make copies and abstracts of the books of account and records of Borrower at reasonable times during normal business hours. In addition, such representative of Lender and its attorneys and accountants shall have the right to meet with management and officers officers, of the Company for a reasonable period of time and on reasonable prior notice to discuss such books of account and records.
6.3 Borrower will from time to time execute, deliver and file, alone or with Lender, any financing statements, security agreements or other documents; procure any instruments or documents as may be reasonably requested by Lender; and take all further action that may be necessarynecessary or desirable, or that Lender may reasonably request, to confirm, perfect, preserve and protect the security interests intended to be granted hereby, and in addition, and for such purposes only, Borrower hereby authorizes Lender to execute and deliver on behalf of Borrower and to file such financing statements, security agreement and other documents without the signature of Borrower either in Lender's name or in the name of Borrower as agent and attorney-in-fact for Borrower. The parties agree that a carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may be filed in any appropriate office in lieu thereof.
6.4 With the exception of the Permitted Liens, Borrower shall protect and defend Borrower's title as well as the interest of the Lender against all persons claiming any interest adverse to Borrower or Lender and shall at all times keep the Collateral free and clear from any legal process, liens or encumbrances whatsoever (except any placed thereon by Lender) and shall give Lender immediate written notice thereof.
Appears in 1 contract
Samples: Subordinated Loan and Security Agreement (Essential Com Inc)
