Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shall: (a) use the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’; (b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lender; (c) refrain from and prevent waste from being committed or against the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due date; (d) maintain all its assets and property in accordance with all applicable environmental laws, and advise the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws. (e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly; (f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto; (g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year; (h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan; (i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations; (j) The Borrower(s) shall NOT without the Lender’s prior written consent; (1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement. (2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit. (3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement
Covenants of the Borrower. (a) The Borrower covenants shall deliver or cause to be delivered to Servicer, the Custodian, and agrees with the Lender that as so long as the loan Loan Agreement is outstandingin effect, it shall:
the Administrative Agent and the Insurance Consultant, within three (a3) use Business Days after the loan only for Borrower’s or any of its Affiliates’ receipt, a copy of each written notice or other letter or document received by the purposes specified Borrower (other than invoices and other information which are not material to the status of a Pledged Policy or such notices, letters or documents received from the Securities Intermediary which have already been delivered to Servicer) in 1.A. Other loan terms ‘Loan Purpose’;connection with a Pledged Policy, the Services or the other transactions contemplated by this Agreement from any Issuing Insurance Company, Insured, Governmental Authority or arbitrator.
(b) pay all amounts owing The Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within three (including interest3) Business Days after the transmission thereof by the Borrower or any of their Affiliates, costs and fees & charges) under this Agreement and any loan a copy of each material written notice or other credit facility agreement between letter or document given by the Borrower and in connection with a Pledged Policy or the Lender;Services to any Issuing Insurance Company, Insured, Governmental Authority or arbitrator.
(c) refrain from The Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and prevent waste from being committed or against so long as the Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, promptly upon (and in any event within two (2) Business Days after) the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes or any of its Affiliates’ receipt of written notice of any kind whatsoeverthreatened or pending action by or before any Governmental Authority or arbitrator or any other Person (other than such notices received from the Securities Intermediary which have already been delivered to Servicer) which (i) involves or affects any Pledged Policy, this Agreement, the Loan Agreement or the transactions contemplated hereby or thereby, (ii) in any manner challenges the validity or enforceability of any Pledged Policy or this Agreement or (iii) in any manner challenges or seeks to restrain or prohibit the transactions contemplated by this Agreement, in each case, a notice setting forth the details thereof and provide proof of payment any action, if any, the Borrower is taking or proposes to the Lender within thirty days of the due date;take with respect thereto.
(d) maintain all its assets and property in accordance with all applicable environmental lawsThe Borrower shall deliver or cause to be delivered to Servicer, the Custodian, and advise so long as the Lender promptly Loan Agreement is in effect, the Administrative Agent and the Insurance Consultant, within two (2) Business Days after the Borrower or any of its Affiliates’ receipt of written notice of any notices material adverse change, or orders received concerning of any fact, event or circumstance that would reasonably be expected to result in a material adverse change, in the ability of Servicer to perform the Services or to otherwise comply with any of its obligations under this Agreement, a notice setting forth the Borrower(s)’ property. The term environmental laws means all applicabledetails thereof and the action, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safetyif any, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present Borrower is taking or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition propose to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance take with all applicable environmental lawsrespect thereto.
(e) Insure and keep fully insured The Borrower shall use its reasonable, good faith efforts to take, or cause to be taken, all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operationactions that are, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss do, or damage cause to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and recordsbe done, and prepare Financial Statements of to assist and cooperate with the Borrower(s) other parties hereto in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end anddoing, if requestedall things that are, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s sharesnecessary, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares proper or otherwise reduce advisable under all Applicable Law to more fully effect the capital purposes of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profitthis Agreement.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as that, so long as the loan is Note shall be outstanding, it shallunless Bank shall otherwise consent in writing:
(a) use the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the 6.1 Borrower and the Lender;
(c) refrain from and prevent waste from being committed or against the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due date;
(d) maintain all its assets and property in accordance with all applicable environmental laws, and advise the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments material charges, taxes, assessments, and reports must be claims in a timely manner so that they will not become or result in a lien against Borrower's assets, except any charges or liabilities which are being contested in good faith by appropriate legal proceedings.
6.2 Borrower shall maintain and keep in force insurance of the types and in amounts customarily carried in lines of business similar to Borrower's, including but not limited to fire, public liability, property damage and worker's compensation, carried with companies and in amounts satisfactory to the LenderBank; and Borrower shall deliver to Bank from time to time at Bank's request evidence of insurance acceptable to Bank. At the request A completed ACORX 00 Form shall constitute evidence of the Lender, the Borrower(s) insurance. Under no circumstances shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawsACORX 00-S Form constitute acceptable evidence of insurance.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for 6.3 Borrower shall maintain its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) financial records in accordance with generally accepted accounting principles (GAAP), and provide same allow Bank to review the Lender within 4 months records at any reasonable time.
6.4 Borrower shall furnish to Bank:
(a) Within one hundred twenty (120) days after the close of each fiscal year, audited financial statements prepared in accordance with GAAP and audited by independent outside accountants satisfactory to Bank.
(b) Within forty five (45) days after the close of each quarter, a copy of Borrower's financial statements certified by an officer of Borrower.
(c) Such other information as may from time to time be reasonably requested by Bank, including but not limited to financial information on the Arbors at Sylvania.
6.5 Borrower shall promptly notify Bank of (i) any material change in Borrower's financial condition; (ii) any change in its name; or (iii) any litigation which if determined adversely to Borrower, would have a material adverse effect on the business operations or financial condition of Borrower, against Borrower.
6.6 Borrower will not violate any laws or regulations if noncompliance will materially and adversely affect the business operations or financial condition of Borrower.
6.7 Borrower shall not without written consent of the bank:
(a) Permit its net worth to be less than $30,000,000.
(b) Permit the ratio of its fiscal year-end and, if requested, within 30 days total debt to its net worth to exceed 4.5 to 1.
(c) Permit the ratio of its current assets to current liabilities to be less than 1 to 1.
(d) For any 12 month period ending at the end of each quarter quarter, permit the ratio of the sum of its fiscal year;net income plus federal and state taxes accrued or paid plus interest expense plus non-cash expenses to its interest expense for the period to be less than 1.1 to 1.
(he) Give For any 12 month period ending at the Lender prompt notice end of each quarter, permit the ratio of its net income plus non-cash expenses or allowances less any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed dividends paid by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without sum of its current portion of long term debt for the Lender’s prior written consent;
(period to be less than 1.15 to 1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2f) redeem Merge or purchase consolidate with any shares other corporation or otherwise reduce any other business entity unless the capital Borrower is the surviving entity of the Borrower(s) merger or repay subordinated loans; consolidation, and permit the total of all dividends, shareholder loan payments and other capital withdrawals merger or consolidation does not result in the current fiscal year to exceed the Borrower(s) net profitviolation of a representation, warranty or covenant hereunder.
(3g) create Liquidate, sell, lease, transfer or permit otherwise dispose of all or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all a substantial portion of its assets unless simultaneously with assets. All proceeds from any sale, lease or transfer of the grant of that security interest provision is then made Collateral shall be remitted by Borrower to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relatesBank.
Appears in 1 contract
Covenants of the Borrower. The Borrower covenants and agrees with respect to the Lender that as long as the loan is outstanding, it shall:Pledged Assets.
(a) use The Borrower shall promptly deliver to the loan only for Lender (i) any report received by or required to be delivered by any Person pursuant to the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;Pooling and Servicing Agreement at the same time as required thereunder, including, without limitation, any trustee's report and any reports delivered to related surety companies; (ii) any notice of transfer of servicing; and (iii) any other such document or information as the Lender may reasonably request from time to time with respect to the Pledged Assets.
(b) pay all amounts owing (including interestThe Borrower shall permit the Lender to inspect its books and records relating to the Mortgage Loans, costs any Securitization Transaction, the Pledged Assets and fees & charges) under this Agreement other matters relating to the transactions contemplated hereby, upon reasonable prior notice and any loan or other credit facility agreement between the Borrower and the Lender;during normal business hours.
(c) refrain At any time and from time to time, upon the written request of Lender, and prevent waste from being committed or against at the sole expense of the Borrower’s assets , the Borrower will promptly and duly execute and deliver such further instruments and documents and take such further actions as Lender may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted. If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any instrument (reasonable wear and tear exceptedincluding any certificated security or promissory note) or chattel paper (in each case as defined in the UCC), and maintain such instrument or chattel paper shall be immediately delivered to Lender, duly endorsed in a manner satisfactory to Lender, to be held as Collateral pursuant to this Agreement. Prior to such delivery, the Assets Borrower shall hold all such instruments or chattel paper in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoevertrust for Lender, and provide proof of payment to the Lender within thirty days shall not commingle any of the due date;foregoing with any assets of the Borrower.
(d) maintain all its assets and property in accordance with all applicable environmental lawsThe Borrower shall pay, and advise the save Lender promptly of harmless from, any notices and all liabilities with respect to, or orders received concerning resulting from any delay in paying, any and all stamp, excise, sales or other similar taxes which may be payable or determined to be payable with respect to any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of Collateral or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance connection with all applicable environmental laws.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held transactions contemplated by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvementthis Agreement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Samples: Receivables Financing Facility Agreement (New Century Financial Corp)
Covenants of the Borrower. 7.1 The Borrower covenants and agrees with the Lender that as long as while this Security Agreement remains in effect the loan is outstanding, it shallBorrower will:
(a) use promptly pay and satisfy the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’Obligations as they become due or are demanded;
(b) pay defend the title to the Collateral for Lender’s benefit, against the claims and demands of all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lenderpersons;
(c) refrain from fully and prevent waste from being committed or against effectually maintain and ensure that the Borrower’s assets (reasonable wear Security Interests are and tear excepted), continue to be valid and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due dateeffective;
(d) maintain all its assets the Collateral in good condition and property in accordance with all applicable environmental laws, repair and advise provide adequate storage facilities to protect the Lender promptly of any notices or orders received concerning any Collateral and not permit the value of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II Collateral to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.impaired;
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws observe and conform to all valid requirements of any governmental authority with respect relative to all or any part of business and assets, the Collateral and all covenants, terms and contracts conditions upon or under which the Collateral is held;
(f) forthwith pay and satisfy:
(i) all taxes, assessments, rates, duties, levies, government fees, claims and dues lawfully levied, assessed or imposed upon it or the Collateral when due, unless the Borrower shall in good faith contest its obligations so to pay and shall furnish to Lender such security as Lender may require;
(ii) all security interests, charges, encumbrances, liens and claims (other than the Permitted Encumbrances) which rank or could rank in priority to, or on an equal basis with, any of the Borrower’s assets are held Security Interests; and
(iii) all fees from time to time chargeable by Lender arising out of any term of the commitment letter between Lender and all terms and conditions relating to any franchise or licence held by the Borrower including, without limitation, inspection, administration and required returned cheque handling fees;
(g) forthwith pay and satisfy all costs, charges, expenses and legal fees and disbursements (on a solicitor and its own client basis) which may be incurred by Lender in connection with granting loans or credit to the Borrower’s operations, including for:
(i) inspecting the Collateral;
(jii) The Borrower(s) shall NOT without negotiating, preparing, perfecting, registering or renewing the Lender’s prior written consentregistration of this Security Agreement and the Security Interests, any Financing or Financing Change Statement, any modification or amending agreement and other documents relating to the Borrower's obligations, whether or not relating to this Security Agreement;
(1iii) use complying with any disclosure requirements under the Act;
(iv) investigating title to the Collateral;
(v) taking, recovering, keeping possession and disposing of the proceeds Collateral;
(vi) maintaining the Collateral in good repair, storing the Collateral and preparing the Collateral for disposition;
(vii) any inspection, appraisal, investigation or environmental audit of the loan in respect Collateral and the cost of any environmental rehabilitation, treatment, removal or repair necessary to protect, preserve or remedy the financing Collateral including any fine or penalty Lender becomes obligated to pay by reason of an improvement that might give rise to the builders’any statute, mechanics’, construction, order or similar lien or to repay any mortgage financing direction of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.competent authority;
Appears in 1 contract
Samples: Asset Purchase Agreement
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shall:
(a) use The Borrower will defend the loan only for Collateral against all claims and demands of all persons at any time claiming the purposes specified same or any interest therein. The Borrower agrees to comply with the requirements of all state and federal laws in 1.A. Other loan terms ‘Loan Purpose’;order to grant to the Lender valid and perfected first priority security interests in the Collateral. The Lender is hereby authorized by the Borrower to file any financing statements or other notices covering the Collateral whether or not the Borrower's signatures appear thereon. The Borrower will not permit any notice of any lien with respect to the Collateral or any portion thereof to exist or be on file in any public offices or any other person, which is not removed or discharged within thirty (30) days.
(b) pay all amounts owing The Borrower will not (including interestI) change the location of its chief executive office and principal place of business or establish any place of business, costs (ii) move or permit movement of the Collateral from the locations specified in Section 3(b) (except inventory in transit from one such location to another such location) or (iii) voluntarily or involuntarily change its identity or corporate structure, unless in each case the Borrower shall have given the Lender 30 days prior written notice thereof and fees & charges) under this Agreement shall have in advance executed and caused to be filed and/or delivered to the Agent any loan financing statements or other credit facility agreement between documents (including, without limitation, collateral access agreements) required by the Borrower Lender in accordance with Section 4(c) hereof, all in form and substance satisfactory to the Lender;.
(c) refrain from The Borrower will, promptly upon request by the Lender, execute and prevent waste from being committed deliver or against the Borrower’s assets use its best efforts to procure any document (reasonable wear and tear exceptedincluding, without limitation, collateral access agreements), give any notices, execute and maintain file any financing statements, mortgages or other documents, all in form and substance satisfactory to the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of Lender, mark any kind whatsoeverchattel paper, and provide proof of payment delxxxx any chattel paper or instruments to the Lender within thirty days and take any other actions that are necessary or, in the opinion of Lender, desirable to perfect or continue the perfection and the first priority of the due date;Lender's security interest in the Collateral, to protect the Collateral against the rights, claims, or interests of third persons or to effect the purposes of this Security Agreement. The Borrower will pay all costs incurred in connection with any of the foregoing.
(d) maintain all its assets and property in accordance with all applicable environmental laws, and advise Without the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request prior written consent of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate Borrower will not in any way hypothecate or create or permit to exist any lien, security interest, charge or encumbrance on or other interest in the form attached certifying Collateral, and the Borrower(s) Borrower will not sell, transfer, lease, assign, pledge, collaterally assign, exchange or otherwise dispose of the Collateral other than the disposition of obsolete and/or worn-out equipment that is replaced by equipment of at least equivalent value and function, or otherwise in compliance connection with all applicable environmental lawsthe normal operations of its business. If the proceeds of any such sale are notes, instruments, documents of title, letters of credit or chattel paper, such proceeds shall be promptly delivered to the Lender, to be held as Collateral hereunder. If the Collateral, or any part thereof, is sold, transferred, assigned, exchanged, or otherwise disposed of in violation of these provisions, the security interests of the Lender shall continue in such Collateral or part thereof notwithstanding such sale, transfer, assignment, exchange or other disposition, and the Borrower will hold the proceeds thereof in a separate account for the benefit of the Lender. Following such a sale, the Borrower will, in accordance with the Credit Agreement, transfer such proceeds to the Lender in kind.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify not enter into any contractual obligations which may restrict or inhibit the Lender immediately Lender's rights or ability to sell or otherwise dispose of the Collateral or any loss or damage to part thereof after the business assets or property. The policies shall clearly indicate loss payable to occurrence and during the Lender firstly;continuance of an Event of Default.
(f) pay all taxesUpon the occurrence and during the continuance of an Event of Default, assessments the Lender shall have the right at any time to make any payments and governmental charges upon it do any other acts the Lender may deem necessary to protect their security interests in the Collateral, including, without limitation, the rights to pay, purchase, contest or upon its properties promptly when due andcompromise any encumbrance, charge or Lien which, in any eventthe judgment of the Lender, appears to be prior to or superior to the date on security interests granted hereunder, and appear in and defend any action or proceeding purporting to affect its security interests in, and/or the value of, the Collateral. The Borrower hereby agrees to reimburse the Lender for all payments made and expenses incurred under this Security Agreement including fees, expenses and disbursements of attorneys and paralegals (including the allocated costs of inside counsel) acting for the Lender, including any of the foregoing payments under or acts taken to protect its security interests in the Collateral, which penalties may become attached thereto;amounts shall be secured under this Security Agreement, and agrees it shall be bound by any payment made or act taken by the Lender hereunder absent Lender's gross negligence or willful misconduct. The Lender shall have no obligation to make any of the foregoing payments or perform any of the foregoing acts.
(g) Maintain accurate books and recordsThe Borrower shall promptly (but in no event later than five (5) Business Days) after its receipt thereof, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same offer to deliver to the Lender within 4 months any documents or certificates of its fiscal year-end andtitle issued with respect to any property included in the Collateral, if requestedand any promissory notes, within 30 days letters of credit or instruments related to or otherwise in connection with any property included in the Collateral, which in any such case came into the possession of the end Borrower, or shall cause the issuer thereof to deliver any of the same directly to the Lender, in each quarter case with any necessary endorsements in favor of its fiscal year;the Lender.
(h) Give In furtherance of the continuing assignment and security interest in the Accounts of the Borrower granted pursuant to this Security Agreement, upon the creation of Accounts and demand of the Lender, the Borrower will execute and deliver to the Lender prompt notice in such form and manner as the Lender may reasonably require, solely for its convenience in maintaining records of any Collateral, such confirmatory schedules of Accounts, and other appropriate reports (including, without limitation, valuations and appraisals) designating, identifying and describing the Accounts as the Lender may require. In addition, upon the Lender's reasonable request, the Borrower shall make available to the Lender copies of agreements with, or purchase orders from, the customers of the Borrower and copies of invoices to customers, proof of shipment or delivery and such other documentation and information relating to said Accounts and other Collateral as the Lender may require.
(I) The Borrower may and will, consistent with prior business practices, enforce and collect all amounts owing on the Accounts, for the benefit of the Lender, such privilege shall terminate automatically, however, upon the occurrence of an Event of Default (as hereinafter defined); and Give which has not been waived by the Lender thirty (30) days prior notice in writing Lender. Upon an Event of Default, any intended change in ownership of it’s shareschecks, if applicable. Notify the Lender of any change in the information contained in any loan application completed cash, notes or other instruments or property received by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence Accounts shall be held by the Borrower in trust for the benefit of the Lender, separate from the Borrower's own property and required in connection funds, and immediately (I) deposited as directed by Lender, or (ii) if such property is not suitable for deposit, turned over to the Borrower’s operations;Lender, without proper assignments or endorsements. No checks, drafts or other instruments received by the Lender shall constitute final payment unless and until such instruments have actually been collected, and the Lender shall promptly make presentment for payment.
(j) The Borrower(s) shall NOT without Borrower agrees to promptly notify the Lender’s prior written consent;
(1) use Lender in writing of any matters materially and adversely affecting the Borrower's business or the value, enforceability or collectibility of any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvementCollateral.
(2k) redeem or purchase any shares or otherwise reduce The Borrower will at all times keep the capital Collateral insured against all insurable hazards in amounts equal to the full insurable value of the Borrower(s) or repay subordinated loans; and permit the total Collateral. Such insurance shall be in such companies as may be acceptable to Lender, with provisions satisfactory to Lender for payment of all dividendslosses thereunder to Lender as its interests may appear. If required by Lender, shareholder loan payments Borrower shall deposit the policies with Lender. Any money received by Lender under said policies may be applied to the payment of the Loans, whether or not due and other capital withdrawals in payable, or at Lender's option may be delivered by Lender to Borrower for the current fiscal year purpose of repairing or restoring the Collateral. Borrower hereby assigns to exceed Lender all right to receive proceeds of insurance not exceeding the Borrower(s) net profitaggregate amount of the Loans.
(3l) create The Borrower shall, at the Borrower's own expense, keep the Equipment in good working order, repair, and operating condition, subject to normal wear and tear. Borrower will pay and discharge all taxes, levies, and other impositions levied thereon as well as the cost of repairs to or maintenance of same, and will not permit anything to be done that may impair the value of any such Collateral.
(m) The Borrower will not allow the Collateral to be attached to real estate in such a manner as to become a fixture or allowa part of any real estate (other than any real estate on which Lender have a first and prior perfected fixture filing).
(n) The Borrower shall (I) use, including its subsidiariesstore and maintain the Inventory and the Equipment with all reasonable care and caution which is consistent with good business practice, any mortgageand (ii) use the Inventory and Equipment for lawful purposes only and in conformity with applicable laws, chargeordinances and regulations.
(o) The Borrower agrees to maintain books and records pertaining to the Collateral in such detail, lien or other security interest any or all of its assets unless simultaneously form and scope as is consistent with good business practice, and agrees that such books and records will reflect the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.Lender's interest
Appears in 1 contract
Samples: Credit and Security Agreement (Fountain Pharmaceuticals Inc)
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shallfollows:
(a) use The Borrower shall, at all times during the loan only for the purposes specified in 1.A. Other loan terms ‘term of this Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and while any loan or other credit facility agreement between of the Borrower Bond is outstanding, keep and maintain with respect to the Project and the Lender;
(c) refrain from System property and prevent waste from being committed casualty insurance and liability insurance with insurers licensed to do business in the State, or risk pool coverage programs described in SDCL chapter 3-22, against such risks and in such amounts as are customary in the State for entities of the same or similar size and type as the Borrower’s assets (reasonable wear and tear excepted), and maintain similarly situated with facilities of the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoeverSystem’s type, and provide proof of payment such coverage to the Lender within thirty District. Each property and casualty policy shall name the District as an additional insured.
(b) Each policy of insurance must provide that it cannot be canceled without 30 days prior written notice of cancellation. In the event of cancellation the Borrower will promptly obtain replacement insurance with the same or substantially similar coverage and provide proof of such coverage to the District. In the event of renewal, replacement, or changes in coverage, the Borrower will promptly provide written notice of such changes to the District. If any Project or portion thereof has been completed prior to Closing, the Borrower shall deliver to the District and Trustee at Closing a certificate providing the information required by Section 2.2(a).
(c) The Borrower shall grant the District and its authorized representatives the right at all reasonable times and upon reasonable notice, to enter upon the property of the due date;Borrower for the purpose of inspecting the System and/or any or all books and records of the Borrower related to the System.
(d) maintain all The Borrower shall immediately upon the execution and delivery of this Loan Agreement, at its assets and property in accordance with all applicable environmental lawsown expense, cause this Loan Agreement, the Borrower Bond, and advise any Collateral Documents granting a first security interest or a first lien in revenues or property, and any financing statements or other documents relating thereto to be filed, recorded, or registered in such manner and in such places, and to otherwise do such acts as are reasonably deemed necessary or advisable to fully perfect and protect the Lender promptly of any notices or orders received concerning any validity and priority of the Borrower(s)’ propertylien and security interest granted to the District, and to continue the perfection of such security interest and lien. The term environmental laws means all applicableBorrower agrees to execute any further documents, current agreements, instruments or other writings that may be requested by the District for such perfection and future federalprotection, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, including executing and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawsfiling continuation statements.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify agrees to maintain the Lender immediately necessary and appropriate accounts, records and books in which full and correct entries are made, capable of any loss or damage to allowing the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements preparation of the Borrower(s) annual financial statements prepared in accordance with generally accepted accounting principles financial and provide same reporting standards as promulgated by the Governmental Accounting Standards Board, or the Financial Accounting Standards Board, as appropriate, or an Other Comprehensive Basis of Accounting as defined by the American Institute of Certified Public Accountants, and agrees to maintain Project accounts as separate accounts as required by the Relevant Federal Act. The District and its authorized representatives shall have the right to inspect such books and accounts upon reasonable notice, during normal business hours.
(f) The Borrower agrees that each year it shall prepare and send to the Lender within 4 months of District:
(1) when adopted, its fiscal year-end and, if requestedfinal budget, within 30 days of adoption; and,
(2) an unaudited statement of the financial position of the Borrower as of the close of the fiscal year and the related statements of revenues and expenses, cash flows, fund balances and changes in fund balances for such fiscal year in accordance with financial and reporting standards as promulgated by the Governmental Accounting Standards Board, the Financial Accounting Standards Board, or an Other Comprehensive Basis of Accounting as appropriate, and certified by a responsible official of the Borrower. Such statement shall be prepared by the Borrower within 120 days of the end of each quarter the Borrower's fiscal year. In addition, Borrower shall send the District copies of any financial and compliance audit required by state law within 15 days of issuance or acceptance by the State Department of Legislative Audit. In addition, Borrower will send to the District a copy of any internal control review report done by or submitted to the State Department of Legislative Audit within 15 days after it has been issued or accepted by the State Department of Legislative Audit. The Borrower agrees to comply with the Single Audit Act of 1984 as amended. The Borrower agrees to provide to the District, in connection with the issuance and sale by the District of Additional Bonds or with any sale or other assignment by the District of any or all of its fiscal year;rights under the Loan Documents and the Borrower Bond, any and all financial and other information and documents which the District requests in order to prepare a preliminary or final official statement or other disclosure document to be delivered to purchasers or offerees of the Additional Bonds or of direct or indirect interests in any or all of the rights of the District under the Loan Documents and the Borrower Bond. The Borrower represents that any such information and documents supplied by the Borrower, taken as a whole, will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The Borrower agrees, whenever requested by the District, to provide and certify, or cause to be provided and certified, such information concerning the Borrower, its System, its finances, the Project, or such other topics as the District from time to time reasonably considers necessary or appropriate, including such information as necessary to enable the District or its authorized representatives to make any reports required by state or federal law or regulation.
(h) Give After reasonable notice from the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s sharesEPA, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower shall make available to the EPA such records as the EPA reasonably requires to review and determine compliance with respect to this loan;the Relevant Federal Act.
(i) Observe The Borrower has complied and shall comply with all laws conditions and conform to all valid requirements of governmental authority with respect the Relevant Federal Act pertaining to all the Loan, Project or any part of business and assetsthe System, and covenants to comply with all representations, covenants, terms conditions and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required agreements, if any, set forth in connection to the Borrower’s operations;Appendix C hereto.
(j) The Borrower(s) Borrower does not and shall NOT without not in the Lender’s prior written consent;construction, maintenance and operation of its System discriminate in any way on the basis of race, creed, color, religion, sex or national origin.
(1k) use any The Borrower will provide an Opinion of Bond Counsel in substantially the form of Appendix D attached hereto prior to closing.
(l) The Borrower represents that within six months after the date of this Loan Agreement, the Borrower expects to incur a substantial binding obligation to commence or acquire the Project to be financed by the Loan and upon incurring such binding obligation, agrees that work on or acquisition of the Project will proceed with due diligence to completion. The Borrower further represents that it expects to expend all proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
Borrower Bond within three (3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all years after the date of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relatesLoan Agreement.
Appears in 1 contract
Samples: Revenue Obligation Loan Agreement
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shall:
(a) use the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lender;
(c) refrain from and prevent waste from being committed or against the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due date;
(d) maintain all its assets and property in accordance with all applicable environmental laws, and advise the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment Environmental Risk Assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
(k) The Borrower shall submit following documents to Lenders;
(i) Monthly / Quarterly / Semi-annually / Annually compiled (audited) Financial Statement and Income Tax return copy within 4 months of its fiscal year-end
(ii) Copy of Property Tax receipt when paid. (at least annually) (iii) Municipal Property Value Assessment copy (when noticed)
(l) The Borrower shall maintain;
(i) Debt service ratio more than 1.25
(ii) Total borrowing shall not exceed C$
(m) The Borrower will have a meeting with the Lender at the any place Xxxxxx’s choose to present business performance and prospects at least once a year.
Appears in 1 contract
Samples: Loan Agreement
Covenants of the Borrower. 4.1 The Borrower covenants and agrees with the Lender that as long as follows, unless Lender provides its written consent to the loan is outstanding, it shallcontrary:
(a) use A. It shall maintain, preserve and keep the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower Property and the Lender;
(c) refrain from and prevent waste from being committed grounds, structure improvements appurtenant thereto or against the Borrower’s assets (reasonable wear and tear excepted)used therewith, and maintain the Assets each and every part and parcel thereof, in good repair and working order and repair. Promptly in safe condition at all times.
B. It shall permit the Lender and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment its duly authorized agents free access to the Lender within thirty days of the due date;
(d) maintain all its assets Property and property in accordance with all applicable environmental lawsshall, upon reasonable prior notice from Lender, make available for audit and advise inspection, at any reasonable time by the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ its duly authorized agents, all property. The term environmental laws means all applicable, current equipment, books, contracts, records and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies other papers relating to or pertaining the Property. It shall keep the books and accounts of all operations relating to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) Property in accordance with generally accepted accounting principles procedures.
C. It shall promptly respond to any inquiry from the Lender for information with respect to the Property which information may be verified by the Lender; provided, however, that the Lender shall at all times be entitled to rely upon any statements or representations made by the Borrower or any employee or agent of Borrower.
D. It shall pay, when due, all reasonable costs, fees and provide same expenses actually incurred by Lender as required by the Loan Documents and all reasonable fees, costs and expenses actually incurred by Lender concerning the consummation of the transaction contemplated hereby. Such fees and expenses shall include, without being limited to, all reasonable fees and expenses of Lender's counsel in connection with the closing of the Loan and for such further advice and counsel as Lender may reasonably require during the term of the Loan in order to preserve Lender's interest in the Property. If Borrower fails to pay all such fees and expenses, Lender may at its option advance funds under the Note to pay such fees and expenses.
E. It shall pay promptly when due and at maturity the principal of the Loan, together with interest thereon, and all other charges and amounts due the Lender, the said payment to be made without any deduction for taxes, assessments or governmental charges in the nature thereof upon said Loan, or the interest evidenced thereby, or any part thereof, which the Borrower may be required or permitted to deduct, retain or pay therefrom or thereon, under or by reason of any present or future law of the United States or of any state, municipality or taxing authority thereof.
F. It shall purchase and continually maintain and keep in full force and effect, at its sole expense, those policies of insurance and endorsements thereto described in the Mortgage. The Borrower shall deliver the original policies of insurance or certificates thereof to the Lender and shall deliver to the Lender all renewals thereof not less than 30 days in advance of the expiration date of the existing policy or policies.
G. It shall notify the Lender of any loss insured against under any policy of insurance required hereby within 4 months 10 days of its fiscal year-the occurrence of said loss.
H. It shall faithfully pay and discharge promptly when due all taxes, assessments, forced contributions, local assessments and governmental charges of every description which shall from time to time be imposed or assessed or levied upon the Property, or any part thereof, and/or upon or against any personal property situated therein, including all state and municipal taxes affecting the Property and the Property and/or personal property located therein; provided, however, that Borrower shall be entitled by appropriate proceedings to contest the amount or validity of such tax, assessment or charge so long as the collection of the same by foreclosure of the lien upon the Property is stayed during the pendency of such proceedings and Borrower deposits with the applicable authority to which such tax, assessment or charge is payable or with Lender such appropriate security for payment of the same, together with any applicable interest and penalties, should the same be determined due and owing.
I. It shall keep valid and unimpaired the Mortgage and the other Loan Documents described hereinabove, and to that end andshall execute at any future time and as often as may be deemed necessary, within a reasonable time after demand of the Lender, all further instruments, assignments and other acts in due form and effect as may be deemed proper by the Lender to the better carrying out of the true intent and meaning of this Agreement, and at the Borrower's sole cost, shall do all other things that may be reasonably required by the Lender to make and keep valid the liens on, and security interest in, the property described in the various Loan Documents and to maintain the priority of the said liens and security interests. Notwithstanding the foregoing to the contrary, Borrower shall not be required to execute any further instruments, assignments or acts if requestedsame would increase Assignor's obligations or liability under this Agreement or the Loan Documents or if same would contradict any express provisions of this Agreement or the Loan Documents.
J. It shall notify the Lender in writing within 10 days of receipt of notice thereof should any mortgage or lien or any other security instrument whatsoever be filed against the Property described in the Mortgage.
K. It shall remove or bond off under the provisions of applicable law any lien or claim of lien filed for record, within 60 days of date of notice to the Borrower of filing of said claim.
L. It shall not permit the entry of any monetary judgment or the assessment against, the filing of any tax lien against, or the issuance of any writ of garnishment or attachment against the Property that is not discharged or execution not stayed within 30 days of entry.
M. It shall not create, assume, or permit to exist any mortgage, security deed, deed of trust, pledge, lien, charge or other encumbrance on the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s sharesProperty, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
whether now owned or hereafter acquired, other than (i) Observe all laws and conform to all valid requirements of governmental authority with respect to all security interests required by the Loan Documents; (ii) liens for taxes contested in good faith; (iii) liens accruing by law for employee benefits; or any part of business and assets(iv) permitted liens.
N. It shall not convey, and all covenantstransfer, terms and contracts upon lease, deteriorate or under which further encumber the Property or any of the Borrower’s assets are held and all terms and conditions relating properties described in the Mortgage and/or the other Loan Documents, or any right to any franchise manage or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use receive any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’rents and profits and insurance thereof.
O. It shall not Convey, mechanics’assign, constructiontransfer, deteriorate, or similar lien encumber any personal property included within the definition of Property. It shall not dispose of any personal property included within the definition of Property, unless replaced with an item of equal or to repay any mortgage financing of an improvementbetter utility or value.
(2) redeem P. It shall not, directly or purchase indirectly, create, incur, assume or become liable for any shares additional indebtedness, whether contingent or otherwise reduce direct, if such additional indebtedness is secured by the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profitProperty.
(3) create Q. It shall not purchase or permit or allowacquire any items meeting the definition of Property upon leases, including its subsidiaries, any mortgage, charge, lien conditional sale or other type of title retention or security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relatesagreement.
Appears in 1 contract
Covenants of the Borrower. The Until the Loan has been entirely repaid and all of Borrower's obligations to the Department in connection therewith and herewith have been satisfied, the Borrower hereby covenants and agrees with the Lender that as long as the loan is outstanding, it shallthat:
(a) the Borrower shall use the loan only proceeds of the Loan solely for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’purpose of defraying a portion of the Cost;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower shall preserve Borrower's corporate existence, rights, privileges and franchises, and maintain Borrower's good standing as a corporation under the Lenderlaws of Delaware;
(c) refrain from the Borrower shall comply with all laws, regulations and prevent waste from being committed or against the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes orders of any kind whatsoever, and provide proof of payment to court or governmental body having jurisdiction over the Lender within thirty days of the due dateProject;
(d) maintain all its assets the Borrower shall, upon request by the Department, provide financial information and property other information concerning Borrower in accordance with all applicable environmental laws, and advise the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be form reasonably satisfactory to the Lender. At Department, including at least the request following:
(i) a certificate of an authorized officer of the LenderBorrower setting forth the number of employees and their respective job classifications (skilled, semi-skilled and unskilled) employed during the Borrower(sprevious year at the Project; and (ii) shall execute financial statements of the Borrower for its most recent fiscal year, including its balance sheet and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.income statement;
(e) Insure and keep fully insured the Borrower shall comply with all secured properties for an amount no less than full insurable value of the property terms and business conditions of this Agreement, the Note, and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstlySecurity Agreement;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in the Borrower shall not create any event, prior to additional debt secured by the date on which penalties may become attached theretoEquipment;
(g) Maintain accurate books and recordsthe Borrower shall not discriminate against any employee or against any applicant for employment because of race, color, religious creed, national origin, ancestry, sex or age (including, but not limited to, employment upgrading. demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and prepare Financial Statements of selection for training, including apprenticeship). The Borrower hereby accepts and agrees to be bound by the Borrower(s) nondiscrimination provisions as set forth in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal yearExhibit "B" attached hereto;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower shall comply with respect to this loanthe contractor integrity provisions as set forth in Exhibit "C" attached hereto;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required shall comply with the contractor responsibility provisions as set forth in connection to the Borrower’s operationsExhibit "D" attached hereto;
(j) The Borrower(s) the Borrower shall NOT without pay all the Lender’s prior written consentcosts of filing financing statements and any other costs that may be incurred pursuant to the closing and administration of the Loan;
(1k) use any the Borrower shall provide proper facilities at all times for inspection of the proceeds Equipment by the Department and its authorized representatives, and shall afford full and free access to the Project to such persons as may from time to time be designated by the Department;
(l) without the prior written consent of the loan in respect of Department. the financing of an improvement that might give rise to the builders’Borrower shall not (i) change its name, mechanics’merge, constructionconsolidate or divide, or similar lien (ii) sell, transfer, assign, lease or to repay otherwise convey or dispose of all or any mortgage financing material part of an improvement.its assets, except in the ordinary course of business;
(2m) redeem or purchase any shares or otherwise reduce the capital of Borrower shall comply with the Borrower(s) or repay subordinated loansAmericans With Disabilities Act Provisions as set forth in Exhibit "E" attached hereto; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.and
(3n) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously the Borrower shall provide the Department yearly with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally Borrower's current 10K filing with Securities and ratably with the indebtedness to which that security interest relatesExchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Intersil Corp)
Covenants of the Borrower. The Borrower covenants From the date hereof and agrees with the Lender that as long as the loan is outstanding, it shalluntil ------------------------- all amounts due hereunder are indefeasibly repaid in full:
(a) use The Borrower will: (i) obtain promptly at any time and from time to time and will maintain such licenses, consents, registrations and authorizations as may be required under Applicable Law to enable the loan only for Borrower to perform its obligations under this Agreement and the purposes specified in 1.A. Other loan terms ‘Term Loan Purpose’;Note and will promptly furnish the Bank with such evidence thereof as the Bank may reasonably request from time to time; (ii) preserve and maintain its corporate existence.
(b) pay all amounts owing (including interestThe Borrower will compensate the Bank for any loss, costs and fees & cost or expense resulting from any change in law or regulation resulting in the imposition by any government, governmental or regulatory agency or authority or court of reserve requirements, additional reserve requirements, special deposit requirements, capital adequacy requirements, insurance charges) under this Agreement and any loan , taxes or other credit facility agreement between assessments or charges (whether or not having the Borrower and force of law) (other than any Tax on the Lender;overall net income of the Bank or of the branch from which it is maintaining the Term Loan) with respect to the Term Loan or Term Loan Note (or with respect to any deposits or other funds acquired to fund the Term Loan), the result of which shall be to (A) increase the cost to the Bank of the Term Loan or the transactions contemplated hereunder or (B) reduce the amount of any sum received or receivable by the Bank with respect to the Term Loan or the return to be earned by the Bank on the Term Loan.
(c) refrain from The Borrower agrees that the Term Loan, this Agreement and prevent waste from being committed or against the Term Loan Note will at all times constitute the direct, binding and enforceable obligations of the Borrower’s assets (reasonable wear and tear excepted), and maintain enforceable in accordance with its terms, except as the Assets in good order and repair. Promptly and punctually pay property taxes and all enforcement thereof may be limited by bankruptcy, insolvency or other applicable taxes similar laws relating to or affecting generally the enforcement of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due date;creditors' rights or by general equitable principles.
(d) maintain all its assets and property in accordance with all applicable environmental laws, and advise The Borrower will use the Lender promptly of any notices or orders received concerning any proceeds of the Borrower(s)’ propertyTerm Loan for general business purposes. The term environmental laws means all applicableNone of the proceeds of the Term Loan shall be used to purchase or carry, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to reduce or pertaining retire or refinance any credit incurred to the environment, conservation, occupational health purchase or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectlycarry, any release, deposit, discharge or disposal margin stock (within the meaning of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) Regulations U and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results X of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense Board of Governors of the Borrower(s), as Federal Reserve System) or to extend credit to others for the Lender deems appropriate purpose of purchasing or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawscarrying any margin stock.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of So long as this Term Loan shall remain unpaid the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify maintain a ratio of Debt for Borrowed Money to EBITDA for the Lender immediately period of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements four fiscal quarters then ended of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvementnot more than 3.25:1.0.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Samples: Credit Agreement (International Flavors & Fragrances Inc)
Covenants of the Borrower. 4.1 The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shall:
(a) use the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lender;
Company acknowledge that the Securities have not been registered under the Securities Act of 1933, as amended (cthe “Securities Act”) refrain from or applicable state securities laws and prevent waste from being committed or against that the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment Securities will be issued to the Lender within thirty days in reliance on exemptions from the registration requirements of the due date;
(d) maintain all its assets Securities Act and property applicable state securities laws and in accordance with all applicable environmental laws, reliance on the Lender’s and advise the Company’s representations and agreements contained herein. The Lender is acquiring the Securities for the account of the Lender promptly of any notices for investment purposes only and not with a view to their resale or orders received concerning any of the Borrower(s)’ propertydistribution. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal Lender has no present intention to divide its participation with others or local statues, regulations, by-laws, rules, ordinances, guidelines, codes to resell or otherwise dispose of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business the Securities.
4.2 The Lender agrees that if the Securities or any part thereof are sold or distributed in the future, the Lender shall sell or distribute them pursuant to the requirements of the Securities Act and assetsapplicable state securities laws. The Lender agrees that the Lender will not transfer any part of the Securities without (i) obtaining a “no action” letter from the Commission and applicable state securities commissions; (ii) obtaining an opinion of counsel satisfactory in form and substance to the Company to the effect that such transfer is exempt from the registration requirements under the Securities Act and applicable state securities laws; or (iii) registration.
4.3 The Lender understands that the Company at a future date may file a registration or offering statement (the “Registration Statement”) with the Commission to facilitate a public offering of its securities. The Lender agrees, for the benefit of the Company, that should such an initial public offering be made and all covenantsshould the managing underwriter of such offering require, terms the Lender will not, without the prior written consent of the Company and contracts upon such underwriter, during the “Lockup Period” as defined herein: (i) sell, transfer or under which otherwise dispose of, or agree to sell, transfer or otherwise dispose of any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held Warrant Shares beneficially owned by the Borrower and required in connection Lender during the Lockup Period; (ii) sell, transfer or otherwise dispose of, or agree to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use sell, transfer or otherwise dispose of any options, rights or warrants to purchase any of the proceeds Warrant Shares beneficially owned by the Lender during the Lockup Period; or (iii) sell or grant, or agree to sell or grant, options, rights or warrants with respect to any of the loan in respect Warrant Shares. The foregoing does not prohibit gifts to donees or transfers by will or the law of descent to heirs or beneficiaries provided that such donees, heirs and beneficiaries shall be bound by the restrictions set forth herein. The term “Lockup Period” shall mean the lesser of (x) 180 days and (y) the period during which Company officers and directors are restricted by the managing underwriter from effecting any sales or transfers of the financing of an improvement that might give rise to Company’s Common Stock. The Lockup Period shall commence on the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital effective date of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profitRegistration Statement.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Samples: Securities Purchase Agreement (Epien Medical, Inc.)
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shallfollows:
(a) use The Borrower shall, at all times during the loan only for the purposes specified in 1.A. Other loan terms ‘term of this Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and while any loan or other credit facility agreement between of the Borrower Bond is outstanding, keep and maintain with respect to the Project and the Lender;
(c) refrain from System property and prevent waste from being committed casualty insurance and liability insurance with insurers licensed to do business in the State, or risk pool coverage programs described in SDCL Chapter 3-22, against such risks and in such amounts as are customary in the State for entities of the same or similar size and type as the Borrower’s assets (reasonable wear and tear excepted), and maintain similarly situated with facilities of the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoeverSystem’s type, and provide proof of payment such coverage to the Lender within thirty days District.
(b) In the event of cancellation of coverage, the Borrower will promptly obtain replacement insurance with the same or substantially similar coverage and provide proof of such coverage to the District. In the event of a substantial change in insurance, issuance of a new policy, renewal, replacement, or changes in coverage, the Borrower will promptly provide written notice of such changes to the District and provide a new certificate of insurance showing continuous coverage in the amounts required. If the Project or any portion thereof has been completed prior to Closing, the Borrower shall deliver to the District and Trustee at Closing a certificate providing the information required by Section 2.2(a).
(c) The Borrower shall grant the District and its authorized representatives the right, at all reasonable times and upon reasonable notice, to enter upon the property of the due date;Borrower for the purpose of inspecting the System and/or any or all books and records of the Borrower related to the System.
(d) maintain all The Borrower shall immediately upon the execution and delivery of this Loan Agreement, at its assets and property in accordance with all applicable environmental lawsown expense, cause this Loan Agreement, the Borrower Bond, and advise any Collateral Documents granting a first security interest or a first lien in revenues or property, and any financing statements or other documents relating thereto to be filed, recorded, or registered in such manner and in such places as are specified by the Lender promptly of any notices District in writing, and to otherwise do such acts as are reasonably deemed necessary or orders received concerning any advisable by the District to fully perfect and protect the validity and priority of the Borrower(s)’ propertylien and security interest granted to the District, and to continue the perfection of such security interest and lien. The term environmental laws means all applicableBorrower agrees to execute any further documents, current agreements, instruments or other writings that may be requested by the District for such perfection and future federalprotection, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, including executing and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawsfiling continuation statements.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify agrees to maintain the Lender immediately necessary and appropriate accounts, records and books in which full and correct entries are made, capable of any loss or damage to allowing the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements preparation of the Borrower(s) annual financial statements prepared in accordance with generally accepted accounting principles financial and provide same reporting standards promulgated by the Governmental Accounting Standards Board, or the Financial Accounting Standards Board, as appropriate, or an Other Comprehensive Basis of Accounting as defined by the American Institute of Certified Public Accountants, and agrees to maintain Project accounts as separate accounts as required by the Relevant Federal Act. The District and its authorized representatives shall have the right to inspect such books and accounts upon reasonable notice, during normal business hours.
(f) The Borrower agrees that each year it shall prepare and send to the Lender within 4 months of District:
(1) when adopted, its fiscal year-end and, if requestedfinal budget, within 30 days of adoption; and,
(2) an unaudited statement of the financial position of the Borrower as of the close of the fiscal year and the related statements of revenues and expenses, cash flows, fund balances and changes in fund balances for such fiscal year in accordance with financial and reporting standards promulgated by the Governmental Accounting Standards Board, the Financial Accounting Standards Board, or an Other Comprehensive Basis of Accounting as appropriate, and certified by a responsible official of the Borrower. Such statement shall be prepared by the Borrower within 120 days of the end of each quarter the Borrower's fiscal year. In addition, Borrower shall send the District copies of any financial and compliance audit required by state law within 15 days of issuance or acceptance by the State Department of Legislative Audit. In addition, Xxxxxxxx will send to the District a copy of any internal control review report done by or submitted to the State Department of Legislative Audit within 15 days after it has been issued or accepted by the State Department of Legislative Audit. The Borrower agrees to comply with the Single Audit Act of 1984 as amended. The Borrower agrees to provide to the District, in connection with the issuance and sale by the District of Additional Bonds or with any sale or other assignment by the District of any or all of its fiscal year;rights under the Loan Documents and the Borrower Bond, any and all financial and other information and documents which the District requests in order to prepare a preliminary or final official statement or other disclosure document to be delivered to purchasers or offerees of the Additional Bonds or of direct or indirect interests in any or all of the rights of the District under the Loan Documents and the Borrower Bond. The Borrower represents that any such information and documents supplied by the Borrower, taken as a whole, will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The Borrower agrees, whenever requested by the District, to provide and certify, or cause to be provided and certified, such information concerning the Borrower, the System, its finances, the Project, or such other topics as the District from time to time reasonably considers necessary or appropriate, including such information as necessary to enable the District or its authorized representatives to make any reports required by state or federal law or regulation.
(h) Give After reasonable notice from the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s sharesEPA, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower shall make available to the EPA such records as the EPA reasonably requires to review and determine compliance with respect to this loan;the Relevant Federal Act.
(i) Observe The Borrower has complied and shall comply with all laws conditions and conform to all valid requirements of governmental authority with respect the Relevant Federal Act pertaining to all the Loan, Project or any part of business and assetsthe System, and covenants to comply with all representations, covenants, terms conditions and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required agreements, if any, set forth in connection to the Borrower’s operations;Appendix C hereto.
(j) The Borrower(s) Borrower does not and shall NOT without not in the Lender’s prior written consent;construction, maintenance and operation of the System discriminate in any way on the basis of race, creed, color, religion, sex or national origin.
(1k) use any The Borrower will provide an Opinion of Bond Counsel in substantially the form of Appendix D attached hereto prior to closing.
(l) The Borrower represents that within six months after the date of this Loan Agreement, the Borrower expects to incur a substantial binding obligation to commence or acquire the Project to be financed by the Loan and upon incurring such binding obligation, agrees that work on or acquisition of the Project will proceed with due diligence to completion. The Borrower further represents that it expects to expend all proceeds of the loan in respect Borrower Bond within three (3) years after the date of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvementthis Loan Agreement.
(2m) redeem or purchase any shares or otherwise reduce The Borrower in the capital Borrower Resolution has designated the Borrower Bond as a “qualified tax-exempt obligation” within the meaning of Section 265(b)(3) of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profitCode.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.]
Appears in 1 contract
Samples: Revenue Obligation Loan Agreement
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shallfollows:
(a) use The Borrower will observe in all material respects all terms, provisions and covenants required to be observed by it in the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;Documents and this Bond Purchase Agreement.
(b) pay all amounts owing (including interest, costs and fees & charges) under The Borrower will take such action as may be reasonably required to facilitate the timely consummation of the transactions contemplated by this Bond Purchase Agreement and any loan or other credit facility agreement between the Borrower and Loan Documents, subject to the Lender;limitations otherwise provided herein.
(c) refrain from and prevent waste from being committed or against The Borrower will notify the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes Underwriter of any kind whatsoevermaterial adverse change in the business, properties or financial condition of the Borrower occurring before Closing and provide proof of payment at such other time or times prior to the Lender within thirty days Closing Date, when, in the opinion of the due date;Issuer, the Borrower or the Underwriter, copies of the Official Statement will be required to be delivered to purchasers of the Bonds and when such change, in the judgment of the Issuer, the Borrower or the Underwriter, would require a change in the Official Statement in order to make the statements therein true in all material respects and not materially misleading. Such amendment or supplement shall be prepared at the cost of the Borrower but solely from funds provided to it by the Lessee, the Operating Company or ATSG..
(d) maintain all its assets The Borrower will cooperate with the Underwriter in qualifying the Bonds for offer and property in accordance with all applicable environmental laws, and advise sale under the Lender promptly securities laws of any notices or orders received concerning any such jurisdictions of the Borrower(s)’ property. The term environmental laws means all applicableUnited States of America as the Underwriter may reasonably request; provided, current and future federalhowever, provincialthat the Borrower shall not be obligated to consent to special or general service of process, territorial, municipal to qualify to pay any tax or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining qualify to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or do business in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawsjurisdiction.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify not take or omit to take any action which action or omission will adversely affect the Lender immediately exclusion from gross income for federal income tax purposes of the interest on the Bonds under the Code; provided that the Borrower shall not be responsible for the payment of any loss closing or damage to settlement agreement with the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days Internal Revenue Service entered into without prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Samples: Bond Purchase Agreement (Air Transport Services Group, Inc.)
Covenants of the Borrower. (The Security Interests and the Collateral must be protected while the Security Agreement remains in effect. These covenants are your promises to the Bank describing how the Bank's Security Interests will be attended to. You will also covenant to maintain accurate books and records and allow the Bank's inspection. Your promises are found in the Security Agreement and Schedules.)
7.1 The Borrower covenants and agrees with the Lender Bank that as long as while this Security Agreement remains in effect the loan is outstanding, it shallBorrower will:
(a) use promptly pay and satisfy the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’Obligations as they become due or are demanded;
(b) pay defend the title to the Collateral for the Bank’s benefit, against the claims and demands of all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lenderpersons;
(c) refrain from fully and prevent waste from being committed or against effectually maintain and ensure that the Borrower’s assets (reasonable wear Security Interests are and tear excepted)continue to be valid and effective; General Security Agreement Rev. May, and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due date;2008
(d) maintain all its assets the Collateral in good condition and property in accordance with all applicable environmental laws, repair and advise provide adequate storage facilities to protect the Lender promptly of any notices or orders received concerning any Collateral and not permit the value of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II Collateral to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.impaired;
(e) Insure observe and keep fully insured conform to all secured properties for an amount no less than full insurable value valid requirements of any governmental authority relative to any of the property Collateral and business all covenants, terms and conditions upon or under which the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstlyCollateral is held;
(f) forthwith pay and satisfy:
(i) all taxes, assessments assessments, rates, duties, levies, government fees, claims and governmental charges dues lawfully levied, assessed or imposed upon it or upon the Collateral when due, unless the Borrower shall in good faith contest its properties promptly when due and, in any event, prior obligations so to pay and shall furnish to the date Bank such security as the Bank may require;
(ii) all security interests, charges, encumbrances, liens and claims which rank or could rank in priority to, or on which penalties may become attached theretoan equal basis with, any of the Security Interests; and
(iii) all fees from time to time chargeable by the Bank arising out of any term of the commitment letter between the Bank and the Borrower including, without limitation, inspection, administration and returned cheque handling fees;
(g) Maintain accurate books forthwith pay and recordssatisfy all costs, charges, expenses and prepare Financial Statements legal fees and disbursements (on a solicitor and its own client basis) which may be incurred by the Bank in connection with granting loans or credit to the Borrower, including for:
(i) inspecting the Collateral;
(ii) negotiating, preparing, perfecting, registering or renewing the registration of this Security Agreement and the Security Interests, any Financing or Financing Change Statement, any modification or amending agreement and other documents relating to the Borrower's obligations, whether or not relating to this Security Agreement;
(iii) complying with any disclosure requirements under the Act;
(iv) investigating title to the Collateral;
(v) taking, recovering, keeping possession and disposing of the Borrower(sCollateral;
(vi) maintaining the Collateral in accordance good repair, storing the Collateral and preparing the Collateral for disposition;
(vii) any inspection, appraisal, investigation or environmental audit of the Collateral and the cost of any environmental rehabilitation, treatment, removal or repair necessary to protect, preserve or remedy the Collateral including any fine or penalty the Bank becomes obligated to pay by reason of any statute, order or direction of competent authority;
(viii) all other actions and proceedings taken to preserve the Collateral, enforce this Security Agreement and of any other security interest held by the Bank as security for the Obligations, protect the Bank from liability in connection with generally accepted accounting principles the Security Interests or assist the Bank in its loan and provide same credit granting or realization of the Security Interest, including any actions under the Bankruptcy and Insolvency Act (Canada) and all remuneration of any Receiver (as defined in Article 15 hereof) or appointed pursuant to the Lender within 4 months Bankruptcy and Insolvency Act (Canada);
(ix) any sums the Bank pays as fines, or as clean up costs because of contamination of or from your assets. Further, you will indemnify the Bank and its fiscal year-end andemployees and agents from any liability or costs incurred including legal defense costs. Your obligation under this paragraph continues even after the Obligations are repaid and this agreement is terminated. General Security Agreement Rev. May, if requested, within 30 days of the end of each quarter of its fiscal year;2008
(h) Give at the Lender prompt notice of any Event of Default Bank's request, execute and deliver further documents and instruments and do all acts as the Bank in its absolute discretion requires to confirm, register and perfect, and maintain the registration and perfection of, the Security Interests;
(as hereinafter defined); and Give i) notify the Lender thirty Bank promptly of:
(30i) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in this Security Agreement relating to the Borrower, its business or the Collateral, including, without limitation, any loan application completed change of name or address (including any change of trade name, proprietor or partner) and any change in the present location of any Collateral;
(ii) the details of any material acquisition of Collateral, including the acquisition of any motor vehicles, trailers, manufactured homes, boats or aircraft;
(iii) any material loss or damage to the Collateral;
(iv) any material default by any account debtor in the payment or other performance of its obligations to the Borrower respecting any Accounts;
(v) any claims against the Borrower including claims in respect of the Intellectual Property or of any actions taken by the Borrower with respect to this loandefend the registration of or the validity of or any infringement of the Intellectual Property;
(ivi) Observe the return to or repossession by the Borrower of Collateral that was disposed of by the Borrower; and
(vii) all laws and conform to all valid requirements of governmental authority with respect to all or any part additional places of business and assets, and all covenants, terms and contracts upon any changes in its place(s) of business or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operationschief executive office;
(j) The Borrower(s) shall NOT without prevent the Lender’s prior written consentCollateral, other than Inventory sold, leased, or otherwise disposed of as permitted by this Security Agreement, from being or becoming an accession to property not covered by this Security Agreement;
(1k) use carry on and conduct its business and undertaking in a proper and businesslike manner so as to preserve and protect the Collateral and the earnings, income, rents, issues and profits of the Collateral, including maintenance of proper and accurate books of account and records;
(l) permit the Bank and its representatives, at all reasonable times, access to the Collateral including all of the Borrower's property, assets and undertakings and to all its books of account and records for the purpose of inspection and the taking of extracts and copies, whether at the Borrower’s premises or otherwise, and the Borrower will render all assistance necessary;
(m) observe and perform all its obligations under:
(i) leases, licences, undertakings, and any other agreements to which it is a party;
(ii) any statute or regulation, federal, provincial, territorial, or municipal, to which it is subject;
(n) deliver to the Bank from time to time promptly upon request:
(i) any documents of title, instruments, securities and chattel paper constituting, representing or relating to the Collateral;
(ii) all books of account and all records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral to allow the Bank to inspect, audit or copy them;
(iii) all financial statements prepared by or for the Borrower regarding the Borrower's business; General Security Agreement Rev. May, 2008
(iv) such information concerning the Collateral, the Borrower and the Borrower's business and affairs as the Bank may reasonably require;
(o) with respect to the Intellectual Property, take all necessary steps and initiate all necessary proceedings, to maintain the registration or recording of the Intellectual Property, to defend the Intellectual Property from infringement and to prevent any licensed or permitted user from doing anything that may invalidate or otherwise impair the Intellectual Property;
(p) with respect to copyright forming part of the Intellectual Property, provide to the Bank waivers of the moral rights thereto executed by all contributors or authors of the copyrighted work;
(q) receive and hold in trust on behalf of and for the benefit of the Bank all proceeds from the sale or other disposition of any Collateral;
(r) consent to the Bank contacting and making enquiries of the Borrower’s lessors, as well as municipal or other government officials or assessors; and
(s) observe and perform the additional covenants and agreements set out in any schedules to this Security Agreement.
7.2 Any amounts required to be paid to the Bank by the Borrower under this Clause 7 shall be immediately payable with interest at the highest rate borne by any of the proceeds Obligations until all amounts have been paid.
7.3 This Security Agreement shall remain in effect until it has been terminated by the Bank by notice of the loan in respect of the financing of an improvement that might give rise termination to the builders’, mechanics’, construction, or similar lien or Borrower and all registrations relating to repay any mortgage financing of an improvementthe Security Agreement have been discharged.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Samples: General Security Agreement (Lakeland Industries Inc)
Covenants of the Borrower. 4.1 The Borrower covenants will keep or will cause to be kept in a safe place at its principal offices, at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000, proper and agrees with accurate books, records, ledgers, correspondence and other instruments related to, or connected with, the Lender that as long as Collateral. All such books, records, ledgers, correspondence and other records shall be genuine, complete and correct at all times. The Lenders shall, at all reasonable times, and upon reasonable notice, have the loan is outstandingright to inspect, it shallaudit, verify, check, make abstracts from such books and records, and upon reasonable request, Borrower shall deliver photocopies of requested portions thereof, and any correspondence and other papers pertaining to the Collateral.
4.2 The Borrower at its own expense shall at all times take all steps necessary and prudent to preserve and protect the Collateral and the security interest of the Lenders in the Collateral, including, without limitation, the following:
(a) use the loan only When necessary or desirable for the purposes specified perfection or maintenance of the Lenders' security interest in 1.A. Other loan terms ‘Loan Purpose’the Collateral or when requested to do so by the Lenders, make, stamp or record such entries or legends on any of the Borrower's books and records relating to the Collateral as the Agent shall reasonably request from time to time;
(b) pay At the expense of the Borrower, defend the Collateral and defend and indemnify the Lenders against all amounts owing (including interestclaims, costs liens, security interests, demands and fees & charges) under this Agreement and other encumbrances of third parties, at any loan or other credit facility agreement between time claiming an interest in the Borrower and Collateral which is adverse to any security interest granted to the LenderLenders;
(c) refrain from Keep the Collateral free of all liens and prevent waste from being committed or against encumbrances, except the Borrower’s assets (reasonable wear security interest granted hereunder and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due datethose liens authorized hereunder;
(di) maintain Pay all its assets and property in accordance with all applicable environmental lawstaxes which are or may become a lien on the Collateral, promptly when due, and advise reimburse the Lender promptly Lenders on demand for any such reasonable expenses or taxes incurred by the Lenders in their sole discretion to protect their interests, including the expenses of removing any notices such liens and (ii) pay or orders received concerning cause to be paid all liens, taxes, assessments and governmental charges levied, assessed, or imposed upon any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.Collateral when due;
(e) Insure the Collateral in the name of and keep fully insured with loss or damage payable to the Lenders, as its interest may appear, against loss or damage by fire and other hazards, and extended coverage, theft, burglary, bodily injury and such other risks, with such companies and in such amounts, as is reasonably required by the Lenders at any time (all secured properties for an amount no less than full insurable value such policies providing 30 days minimum written notice of cancellation to the property and business Lenders), and the contents necessary for its operationBorrower will deliver to the Agent the original or duplicate policies, or binding certificates or other evidence satisfactory to the Agent of compliance with the foregoing insurance provisions, and shall provide to the Lender adequate evidence of the insurance. The Borrower will promptly notify the Lender immediately Agent of any loss or damage to any of the business assets Collateral or property. The policies shall clearly indicate loss payable to the Lender firstlyarising from its use;
(f) pay Promptly notify the Agent of any claim, lien, security interest, right or other encumbrance arising out of or with respect to the Collateral or any substantial or material damage to any part of the Collateral; and
(g) Promptly upon request of the Agent, at any time, and from time to time, execute and deliver to the Agent one or more financing statements and other papers, documents or instruments as may be requested by the Agent.
4.3 Borrower will not, without the prior written consent of the Agent, sell (except for sales of items of finished goods inventory in the ordinary course of the business), assign, pledge, exchange or dispose of any of the Collateral in any manner whatsoever or attempt to do any of the foregoing or agree to any modification, waiver or cancellation of, or substitution for, or any credit, adjustment or allowance on, any of the Collateral. In the event of any disposition of any of the Collateral, except for sales of finished goods in the ordinary course of business, the proceeds therefrom will remain Collateral hereunder. The receipt by the Lenders of all or any part of the proceeds of any sale, assignment, pledge exchange or disposition of any of the Collateral shall not be deemed or construed to be a consent by the Lenders to any such sale, assignment, pledge, exchange or other disposition.
4.4 Borrower will make payment or deposit or otherwise provide for the payment, when due, of all taxes, assessments and governmental charges upon or contributions required by law which have been or may be levied or assessed against it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to any of the Collateral, and will deliver to the Lenders, on demand, certificates or other evidence satisfactory to the Lenders attesting thereto.
4.5 Borrower will use the Collateral owned by it or in its possession for lawful purposes only, with all reasonable care and caution and in conformity with all applicable laws, ordinances and regulations. Borrower will not use the Collateral in any way that will void or impair any insurance required to be carried in connection therewith.
4.6 Borrower will, at its expense, perform all acts and execute all documents requested by the Agent at any time to evidence, perfect, maintain and enforce the Lenders' security interest in the Collateral or otherwise in furtherance of the provisions of this loan;Agreement.
(i) Observe 4.7 Borrower hereby assumes all laws responsibility and conform liability arising from its use of its Collateral.
4.8 Borrower hereby agrees that Agent, may, in its discretion, for the account and expense of Borrower, pay any amount or do any act required of the Borrower hereunder or requested by the Lenders to preserve, protect, maintain or enforce the Obligations, the Collateral or the security interest granted herein, and which the Borrower fails to do or pay, and any such payment shall be deemed a part of the Obligations of the Borrower hereunder payable on demand.
4.9 Borrower will promptly pay the Agent or the Lenders for any and all sums, costs, and expenses which the Agent or the Lenders may pay or incur pursuant to the provisions of this Agreement or in defending, protecting or enforcing the security interest granted herein or in enforcing payment of the Obligations, or otherwise, in connection with the provisions hereof, including but not limited to all valid requirements court costs, collection charges, travel, and reasonable attorney's fees, all of governmental authority which, shall be part of the Obligations and be payable on demand.
4.10 At any time the Agent, on behalf of the Lenders, may assign, transfer and deliver to any transferee of any of the Obligations, any or all of the Collateral, whereupon the Lenders shall be fully discharged from all responsibility and the transferee shall be vested with all powers and rights of the Lenders hereunder with respect thereto, but the Lenders shall retain all rights and powers with respect to any Collateral not assigned, transferred or delivered.
4.11 None of the Collateral shall at any time or times be stored with a bailee without the prior written consent of the Lenders.
4.12 Borrower will, from time to time, promptly upon the Agent's request, deliver to the Agent any and all evidence of ownership of, certificates of title, or other documents evidencing any interest in, any and all of the Collateral.
4.13 Borrower hereby authorizes the Agent to execute and file at any time or times one or more financing statements with respect to all or any part of business and assetsthe Collateral, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held signed only by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvementAgent.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Covenants of the Borrower. (1) The Borrower covenants and agrees with the Lender and any Agent that it shall:
(a) pay and satisfy the Obligations when due;
(b) allow the Lender or its agents, on reasonable notice and during regular business hours, access to all premises of the Borrower to inspect any and all Collateral;
(c) diligently maintain and operate the Collateral and shall conduct its operations in a reasonable and prudent manner so as to maintain, preserve and protect the Collateral consistent with past practices;
(d) pay all taxes, rates, levies, assessments, government fees and dues levied, assessed or imposed in respect of the Collateral or any part thereof, as and when the same become due and payable, and shall forthwith upon request by the Lender deliver such evidence as may satisfy the Lender that such taxes, rates, levies, fees and dues have been paid;
(e) at all times repair and keep in good order and condition any part or parts of the Collateral that constitutes tangible personal property, and renew and replace all and any of the same which may become unrepairable or destroyed;
(f) pay or reimburse the Lender and any Agent upon demand for all Expenses together with interest thereon from the date of payment by the Lender or Agent until paid in full to the Lender or the Agent by the Borrower at the highest rate of interest payable under the Debenture, calculated and compounded semi-annually, not in advance before and after demand, maturity, default and judgment, together with interest on overdue interest at the same rate;
(g) defend the Collateral against any actions, claims and demands of any Person (other than the Lender) claiming the Collateral (or any of it) or an interest therein;
(h) maintain its corporate existence and file or cause to be filed any returns, documents or other information necessary to preserve such corporate existence;
(i) notify the Lender of any loss or damage to the Collateral, any change in any information provided in this Agreement (including the Schedules hereto) or any actual or potential claim affecting the Borrower, the Collateral or the Security Interest;
(j) hold the proceeds received from any direct or indirect dealing with the Collateral in trust for the Lender after either the Security Interest becomes enforceable or any of the Collateral is sold other than in the ordinary course of business of the Borrower and for the purpose of carrying on such business;
(k) obtain insurance from financially responsible insurance companies and maintain such insurance coverage as shall be required by all laws, governmental regulations and court decrees and orders applicable to it and such other insurance, to such extent and against such hazards and liabilities, as is customarily maintained by companies similarly situated; provided that in any event, such insurance shall, unless the Lender otherwise agrees, insure against all risks and liabilities of the type insured against as of the date of this Agreement and shall have insured amounts no less than, and deductibles not materially higher than those amounts provided for as of the date of this Agreement and such policies of insurance shall be in such amounts as may be reasonably required by the Lender and shall include a standard mortgage clause approved by the Insurance Bureau of Canada;
(l) strictly comply with every covenant and undertaking heretofore or hereafter given by it to the Lender, whether contained herein or not;
(m) permit the Lender at any time and from time to time, after the Security Interest shall have become enforceable, to require any account debtor of the Borrower to make payment to the Lender of any or all amounts owing by the account debtor to the Borrower and the Lender may take control of any proceeds of the Collateral and may hold all amounts received from any account debtor and any proceeds as cash collateral as part of the Collateral and as security for the Obligations;
(n) prevent any Collateral from becoming an accession to any personal property not subject to the Security Interest, or becoming affixed to any real property;
(o) deliver to the Lender, at the Lender’s request, duly endorsed and/or accompanied by such assignments, transfers, powers of attorney or other documents as the Lender may request, all items of the Collateral comprising chattel paper, instruments, investment property and documents of title;
(p) pay, on demand by the Lender, all costs and Expenses (including all legal fees on a full indemnity basis) incurred by the Lender in the perfection, administration and enforcement of this Agreement (including expenses incurred in considering, protecting or improving the Lender’s position, or attempting to do so, whether before or after default) and all such costs and expenses shall bear interest at the highest rate applicable to the Obligations, shall form part of the Obligations and shall be secured by the Security Interest; and
(q) preserve the Borrower’s rights, powers, licences, privileges, franchises and goodwill, comply with all applicable laws, regulations and orders (including environmental laws, regulations and orders) affecting the Borrower or the Collateral and conduct its business in a proper and efficient manner so as to protect the Collateral, the Security Interest and the business and undertaking of the Borrower.
(2) The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shall:
(a) use the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lender;
(c) refrain from and prevent waste from being committed or against the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due date;
(d) maintain all its assets and property in accordance with all applicable environmental laws, and advise the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) in accordance with generally accepted accounting principles and provide same to the Lender within 4 months of its fiscal year-end and, if requested, within 30 days of the end of each quarter of its fiscal year;
(h) Give the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower with respect to this loan;
(i) Observe all laws and conform to all valid requirements of governmental authority with respect to all or any part of business and assets, and all covenants, terms and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.not:
Appears in 1 contract
Samples: General Security Agreement
Covenants of the Borrower. The On and after the date hereof and until the payment in full of the Note, and the performance of all other obligations of the Borrower covenants and agrees with hereunder, the Borrower agree that, unless the Lender that as long as the loan is outstanding, it shallshall otherwise consent in writing:
(a) use A. to keep, perform, enforce and maintain in full force and effect all of the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’;
(b) pay all amounts owing (including interestterms, costs covenants, conditions and fees & charges) under this Agreement and any loan or other credit facility agreement between requirements of the Borrower Documents, and the Title Documents, not to amend, modify, supplement, terminate, cancel or waive any of the terms, covenants, conditions or requirements of any of said documents without the prior written consent of the Lender;
B. to create, permit to be created or to allow to exist, no liens, charges or encumbrances on the Project (cother than "Permitted Encumbrances" (as defined in the Mortgage) refrain from and prevent waste from the lien of general real estate taxes and pending and special assessments not yet due and payable) except for such liens, charges and encumbrances which are being committed or against the Borrower’s assets (reasonable wear and tear excepted), and maintain the Assets diligently contested in good order faith by appropriate proceedings and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoeverprovided that, and provide proof of payment if requested by the Lender, the Borrower shall have provided to the Lender within thirty days of the due date;
(d) maintain all its assets and property in accordance with all applicable environmental laws, and advise the Lender promptly of any notices or orders received concerning any of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be security satisfactory to the Lender. At Lender as set forth in Section 1.3 of the Mortgage;
C. to obtain and maintain, or cause to be obtained and maintained, at all times during the term of the Loan, if applicable (and, from time to time at the request of the Lender, furnish the Borrower(sLender with proof of payment of premiums on):
1. comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, complete operations and contractual liability insurance) shall execute in such amount as the Lender may require from time to time (but with coverage of not less than $2,000,000/$1,000,000) and deliver naming the Lender as an Environmental Certificate additional insured;
2. hazard insurance, insuring against loss by fire, lightning, vandalism, malicious mischief and other risks customarily covered by a standard extended coverage endorsement, in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.
(e) Insure and keep fully insured all secured properties for an amount no not less than the Loan Amount or the full insurable value of the property and business and the contents necessary for its operationProject, whichever is greater, and shall provide naming the Lender as mortgagee and loss payee; and
3. flood insurance, if any of the Land is located in a "flood plain" as defined by the Federal Insurance Administration, in the maximum obtainable amount up to the Loan Amount, naming the Lender as loss payee (unless an appropriate official of the city in which the Land is located states in writing that all of the Land is not located in a "flood plain" as defined by the Federal Insurance Administration); such policies of insurance to be in form and content satisfactory to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage and to the business assets or property. The policies shall clearly indicate loss payable be placed with insurers acceptable to the Lender firstlylicensed to transact business in the State of Minnesota and to contain an agreement of the insurer to give not less than thirty (30) days' prior written notice to the Lender in the event of cancellation, termination, amendment change or non-renewal of such policy affecting the coverage thereunder; acceptance of such insurance policies not to bar the Lender from requiring additional insurance (either in type or amount) at a later date which it reasonably deems necessary;
(f) D. to give immediate notice to the Lender after the Borrower has knowledge of the occurrence of an Event of Default, or an event which with the giving of notice or lapse of time or both would constitute an Event of Default, a statement signed by the Borrower setting forth details of such Event of Default or event and the action which the Borrower has taken, is taking or proposes to take to correct the same;
E. to pay and discharge all real estate taxes prior to the attachment of penalties with respect thereto and installments of special assessments payable therewith, and insurance premiums with respect to the insurance required to be maintained by the Borrower under the terms of any of the Borrower Documents, and utility charges incurred by the Borrower prior to or during the term of this Agreement, except if such taxes, assessments or premiums are being contested in good faith by appropriate proceedings and governmental charges upon it provided that, if requested by the Lender, the Borrower shall have deposited into escrow with the Lender an amount equal to such taxes, assessments or upon its properties promptly when due and, premiums plus penalties accrued thereon;
F. to cause to be prepared financial statements of the Borrower and the Guarantor as follows:
1. as soon as available and in any eventevent within one hundred twenty (120) days after the end of each fiscal year of the Borrower annual financial statements of the Borrower (balance sheet, prior statement of income, and statement of changes in financial position) for such year, all in reasonable detail and audited by independent certified public accountants selected by the Borrower and acceptable to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements of the Borrower(s) Lender in accordance with generally accepted accounting principles principles, consistently applied, which statement shall also be accompanied by a certificate signed by an officer of the Borrower in the form attached hereto as Exhibit A;
2. as soon as available and provide same to the Lender in any event within 4 months of its fiscal yearone-end and, if requested, within 30 hundred twenty (120) days of after the end of each quarter of its fiscal year, annual financial statements of the Guarantor (balance sheet, statement of income, and statement of cash flow) on a combined and combining basis, all in reasonable detail and prepared and audited by independent certified public accountants of recognized standing selected by the Borrower and acceptable to the Lender to the effect that the same have been prepared in accordance with generally accepted accounting principles, consistently applied, which statement shall also be accompanied by a certificate signed by an officer of such entity;
(h) Give the Lender prompt notice 3. on or before December 15 of any Event of Default (as hereinafter defined); and Give the Lender each year or within thirty (30) days prior after the filing of their tax returns, financial statements and copies of the tax returns of the Borrower and the Guarantor;
4. monthly internally prepared financial statements as soon as available, and in any event within thirty (30) days after the end of each month;
5. from time to time, with reasonable promptness, such further information regarding the business, operations, affairs and financial and other condition of the Borrower as the Lender may request.
G. to promptly give notice in writing of any intended change in ownership of it’s shares, if applicable. Notify to the Lender of any change and all litigation involving the Borrower where the amount in dispute exceeds $50,000 and is not covered by insurance, and of any and all litigation if the aggregate amount in dispute in connection with such litigation exceeds $50,000 and is not covered by insurance, and of any and all material proceedings commenced against the Borrower by or before any court or governmental or regulatory agency;
H. to comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority, a breach of which would materially and adversely affect the business or credit of the Borrower, except where diligently contested in good faith and by proper proceedings;
I. that the Borrower shall not enter into any tenant leases for leased space within the Project without the prior written consent of the Lender;
J. to preserve and maintain all of the Borrower's rights, privileges and permits or licenses necessary or desirable in the information contained normal conduct of the Borrower's business; and not to suspend business operations or convey, transfer, encumber or pledge any of the property or assets that are secured by the Mortgage;
K. to keep all of the assets and properties necessary in the Borrower's business, in good working order and condition, ordinary wear and tear excepted;
L. to obtain all necessary and convenient state, federal, local and private clearances, authorizations, permits and licenses with respect to the business operations of the Borrower, including, without limitation, any loan application completed export and other trade licenses or permits required by law for the present or future business operations of the Borrower; and
M. except for those guaranties and obligations existing as of the date hereof and disclosed on the attached Schedule 9.M, or otherwise in the ordinary course of Borrower's business, the Borrower shall not assume, guarantee, endorse, contingently agree to purchase or otherwise become liable (directly or indirectly, absolutely or contingently) in connection with the obligations of any other person, firm or corporation, nor shall the Borrower make or permit to exist any loans or advances by the Borrower with respect to this loanto, or purchase or otherwise acquire all or any substantial part of the assets of, or any shares of stock or similar interest in, any other person, corporation or entity; provided, however, loans or advances by and between the Borrower and the Guarantor shall be permitted and shall not require advance consent of the Lender;
N. not to undertake or permit without prior written approval of the Lender any other or additional construction on the Project site that is the subject of the Mortgage;
O. the Borrower shall immediately notify the Lender of any termination of its license and permits issued by any governmental or regulatory authorities that are necessary to run its business operation.
P. Borrower shall not permit, as at the end of each fiscal quarter, the Debt Service Coverage Ratio to be less than 1.25 to 1.00. For purposes of this provision "Debt Service Coverage Ratio" means, as at the end of any fiscal quarter for the three month fiscal quarter ending on such date (i.e. the last day of September, December, March and June) for Borrower, the ratio whose numerator is EBITDA, minus non-financed capital expenditures, minus cash taxes, and whose denominator is interest payments, plus the current maturities of long-term debt, plus the current portion of capital leases. "EBITDA" means, in any fiscal period, Borrower's net income for net loss (other than extraordinary or non-recurring gains of Borrower for such period), plus (i) Observe the amount of all laws interest expense, income tax expense, depreciation expense and conform to all valid requirements amortization expense of governmental authority with respect to all or any part of business and assetsBorrower for such period, and all covenantsplus or minis (as the case may be) (ii) any other non-cash charges which have been added or subtracted, terms and contracts upon or under which any of as the case may be, in calculating Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operations;
(j) The Borrower(s) shall NOT without the Lender’s prior written consent;
(1) use any of the proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement's net income for such period.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shallfollows:
(a) use The Borrower shall, at all times during the loan only for the purposes specified in 1.A. Other loan terms ‘term of this Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and while any loan or other credit facility agreement between of the Borrower Bond is outstanding, keep and maintain with respect to the Project and the Lender;
(c) refrain from System property and prevent waste from being committed casualty insurance and liability insurance with insurers licensed to do business in the State, or risk pool coverage programs described in SDCL chapter 3-22, against such risks and in such amounts as are customary in the State for entities of the same or similar size and type as the Borrower’s assets (reasonable wear and tear excepted), and maintain similarly situated with facilities of the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoeverSystem’s type, and provide proof of payment such coverage to the Lender within thirty District. Each property and casualty policy shall name the District as an additional insured.
(b) Each policy of insurance must provide that it cannot be canceled without 30 days prior written notice of cancellation. In the event of cancellation the Borrower will promptly obtain replacement insurance with the same or substantially similar coverage and provide proof of such coverage to the District. In the event of renewal, replacement, or changes in coverage, the Borrower will promptly provide written notice of such changes to the District. If any Project or portion thereof has been completed prior to Closing, the Borrower shall deliver to the District and Trustee at Closing a certificate providing the information required by Section 2.2(a).
(c) The Borrower shall grant the District and its authorized representatives the right at all reasonable times and upon reasonable notice, to enter upon the property of the due date;Borrower for the purpose of inspecting the System and/or any or all books and records of the Borrower related to the System.
(d) maintain all The Borrower shall immediately upon the execution and delivery of this Loan Agreement, at its assets and property in accordance with all applicable environmental lawsown expense, cause this Loan Agreement, the Borrower Bond, and advise any Collateral Documents granting a first security interest or a first lien in revenues or property, and any financing statements or other documents relating thereto to be filed, recorded, or registered in such manner and in such places, and to otherwise do such acts as are reasonably deemed necessary or advisable to fully perfect and protect the Lender promptly of any notices or orders received concerning any validity and priority of the Borrower(s)’ propertylien and security interest granted to the District, and to continue the perfection of such security interest and lien. The term environmental laws means all applicableBorrower agrees to execute any further documents, current agreements, instruments or other writings that may be requested by the District for such perfection and future federalprotection, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, including executing and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawsfiling continuation statements.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify agrees to maintain the Lender immediately necessary and appropriate accounts, records and books in which full and correct entries are made, capable of any loss or damage to allowing the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements preparation of the Borrower(s) annual financial statements prepared in accordance with generally accepted accounting principles financial and provide same reporting standards as promulgated by the Governmental Accounting Standards Board, or the Financial Accounting Standards Board, as appropriate, or an Other Comprehensive Basis of Accounting as defined by the American Institute of Certified Public Accountants, and agrees to maintain Project accounts as separate accounts as required by the Relevant Federal Act. The District and its authorized representatives shall have the right to inspect such books and accounts upon reasonable notice, during normal business hours.
(f) The Borrower agrees that each year it shall prepare and send to the Lender within 4 months of District:
(1) when adopted, its fiscal year-end and, if requestedfinal budget, within 30 days of adoption; and,
(2) an unaudited statement of the financial position of the Borrower as of the close of the fiscal year and the related statements of revenues and expenses, cash flows, fund balances and changes in fund balances for such fiscal year in accordance with financial and reporting standards as promulgated by the Governmental Accounting Standards Board, the Financial Accounting Standards Board, or an Other Comprehensive Basis of Accounting as appropriate, and certified by a responsible official of the Borrower. Such statement shall be prepared by the Borrower within 120 days of the end of each quarter of its the Borrower's fiscal year;.
(g) The Borrower agrees, whenever requested by the District, to provide and certify, or cause to be provided and certified, such information concerning the Borrower, its System, its finances, the Project, or such other topics as the District from time to time reasonably considers necessary or appropriate, including such information as necessary to enable the District or its authorized representatives to make any reports required by state or federal law or regulation.
(h) Give After reasonable notice from the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s sharesEPA, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower shall make available to the EPA such records as the EPA reasonably requires to review and determine compliance with respect to this loan;the Relevant Federal Act.
(i) Observe The Borrower has complied and shall comply with all laws conditions and conform to all valid requirements of governmental authority with respect the Relevant Federal Act pertaining to all the Loan, Project or any part of business and assetsthe System, and covenants to comply with all representations, covenants, terms conditions and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required agreements, if any, set forth in connection to the Borrower’s operations;Appendix C hereto.
(j) The Borrower(s) Borrower does not and shall NOT without not in the Lender’s prior written consent;construction, maintenance and operation of its System discriminate in any way on the basis of race, creed, color, religion, sex or national origin.
(1k) use any The Borrower will provide an Opinion of Bond Counsel in substantially the form of Appendix D attached hereto prior to closing.
(l) The Borrower represents that within six months after the date of this Loan Agreement, the Borrower expects to incur a substantial binding obligation to commence or acquire the Project to be financed by the Loan and upon incurring such binding obligation, agrees that work on or acquisition of the Project will proceed with due diligence to completion. The Borrower further represents that it expects to expend all proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
Borrower Bond within three (3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all years after the date of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relatesLoan Agreement.
Appears in 1 contract
Samples: Revenue Obligation Loan Agreement
Covenants of the Borrower. (The Security Interests and the Collateral must be protected while the Security Agreement remains in effect. These covenants are your promises to the Bank describing how the Bank's Security Interests will be attended to. You will also covenant to maintain accurate books and records and allow the Bank's inspection. Your promises are found in the Security Agreement and Schedules.)
7.1 The Borrower covenants and agrees with the Lender Bank that as long as while this Security Agreement remains in effect the loan is outstanding, it shallBorrower will:
(a) use promptly pay and satisfy the loan only for the purposes specified in 1.A. Other loan terms ‘Loan Purpose’Obligations as they become due or are demanded;
(b) pay defend the title to the Collateral for the Bank’s benefit, against the claims and demands of all amounts owing (including interest, costs and fees & charges) under this Agreement and any loan or other credit facility agreement between the Borrower and the Lenderpersons;
(c) refrain from fully and prevent waste from being committed or against effectually maintain and ensure that the Borrower’s assets (reasonable wear Security Interests are and tear excepted), continue to be valid and maintain the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoever, and provide proof of payment to the Lender within thirty days of the due dateeffective;
(d) maintain all its assets the Collateral in good condition and property in accordance with all applicable environmental laws, repair and advise provide adequate storage facilities to protect the Lender promptly of any notices or orders received concerning any Collateral and not permit the value of the Borrower(s)’ property. The term environmental laws means all applicable, current and future federal, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II Collateral to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental laws.impaired;
(e) Insure observe and keep fully insured conform, in all secured properties for an amount no less than full insurable value materials respects, to all valid requirements of any governmental authority relative to any of the property Collateral and business all covenants, terms and conditions upon or under which the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify the Lender immediately of any loss or damage to the business assets or property. The policies shall clearly indicate loss payable to the Lender firstlyCollateral is held;
(f) forthwith pay and satisfy:
(i) all taxes, assessments assessments, rates, duties, levies, government fees, claims and governmental charges dues lawfully levied, assessed or imposed upon it or upon the Collateral when due, unless the Borrower shall in good faith contest its properties promptly when due and, in any event, prior obligations so to pay and shall furnish to the date Bank such security as the Bank may require;
(ii) all security interests, charges, encumbrances, liens and claims which rank or could rank in priority to, or on which penalties may become attached theretoan equal basis with, any of the Security Interests; and
(iii) all fees from time to time chargeable by the Bank arising out of any term of the commitment letter between the Bank and the Borrower including, without limitation, inspection, administration and returned cheque handling fees;
(g) Maintain accurate books forthwith pay and recordssatisfy all reasonable costs, charges, expenses and prepare Financial Statements legal fees and disbursements (on a solicitor and its own client basis) which may be incurred by the Bank in connection with granting loans or credit to the Borrower, including for:
(i) inspecting the Collateral;
(ii) negotiating, preparing, perfecting, registering or renewing the registration of this Security Agreement and the Security Interests, any Financing or Financing Change Statement, any modification or amending agreement and other documents relating to the Borrower's obligations, whether or not relating to this Security Agreement;
(iii) complying with any disclosure requirements under the Act;
(iv) investigating title to the Collateral;
(v) taking, recovering, keeping possession and disposing of the Borrower(sCollateral;
(vi) maintaining the Collateral in accordance good repair, storing the Collateral and preparing the Collateral for disposition;
(vii) any inspection, appraisal, investigation or environmental audit of the Collateral and the cost of any environmental rehabilitation, treatment, removal or repair necessary to protect, preserve or remedy the Collateral including any fine or penalty the Bank becomes obligated to pay by reason of any statute, order or direction of competent authority;
(viii) all other actions and proceedings taken to preserve the Collateral, enforce this Security Agreement and of any other security interest held by the Bank as security for the Obligations, protect the Bank from liability in connection with generally accepted accounting principles the Security Interests or assist the Bank in its loan and provide same credit granting or realization of the Security Interest, including any actions under the Bankruptcy and Insolvency Act (Canada) and all remuneration of any Receiver (as defined in Article 15 hereof) or appointed pursuant to the Lender within 4 months Bankruptcy and Insolvency Act (Canada);
(ix) any sums the Bank pays as fines, or as clean up costs because of contamination of or from your assets. Further, you will indemnify the Bank and its fiscal year-end and, if requested, within 30 days of employees and agents from any such liability or costs incurred including legal defense costs. Your obligation under this paragraph continues even after the end of each quarter of its fiscal year;Obligations are repaid and this agreement is terminated.
(h) Give at the Lender prompt notice of any Event of Default Bank's request, execute and deliver further documents and instruments and do all acts as the Bank in its absolute discretion requires to confirm, register and perfect, and maintain the registration and perfection of, the Security Interests;
(as hereinafter defined); and Give i) notify the Lender thirty Bank promptly of:
(30i) days prior notice in writing of any intended change in ownership of it’s shares, if applicable. Notify the Lender of any change in the information contained in this Security Agreement relating to the Borrower, its business or the Collateral, including, without limitation, any loan application completed change of name or address (including any change of trade name, proprietor or partner) and any change in the present location of any Collateral;
(ii) the details of any material acquisition of Collateral, including the acquisition of any motor vehicles, trailers, manufactured homes, boats or aircraft;
(iii) any material loss or damage to the Collateral;
(iv) any material default by any account debtor in the payment or other performance of its obligations to the Borrower respecting any Accounts;
(v) any claims against the Borrower including claims in respect of the Intellectual Property or of any actions taken by the Borrower with respect to this loandefend the registration of or the validity of or any infringement of the Intellectual Property;
(ivi) Observe the return to or repossession by the Borrower of Collateral that was disposed of by the Borrower; and
(vii) all laws and conform to all valid requirements of governmental authority with respect to all or any part additional places of business and assets, and all covenants, terms and contracts upon any changes in its place(s) of business or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required in connection to the Borrower’s operationschief executive office;
(j) The Borrower(s) shall NOT without prevent the Lender’s prior written consentCollateral, other than Inventory sold, leased, or otherwise disposed of as permitted by this Security Agreement, from being or becoming an accession to property not covered by this Security Agreement;
(1k) use carry on and conduct its business and undertaking in a proper and businesslike manner so as to preserve and protect the Collateral and the earnings, income, rents, issues and profits of the Collateral, including maintenance of proper and accurate books of account and records;
(l) permit the Bank and its representatives, at all reasonable times and upon reasonable notice, access to the Collateral including all of the Borrower's property, assets and undertakings and to all its books of account and records for the purpose of inspection and the taking of extracts and copies, whether at the Borrower’s premises or otherwise, and the Borrower will render all assistance necessary;
(m) observe and perform all its obligations under:
(i) leases, licences, undertakings, and any other agreements to which it is a party;
(ii) any statute or regulation, federal, provincial, territorial, or municipal, to which it is subject;
(n) deliver to the Bank from time to time promptly upon request:
(i) any documents of title, instruments, securities and chattel paper constituting, representing or relating to the Collateral;
(ii) all books of account and all records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to the Collateral to allow the Bank to inspect, audit or copy them;
(iii) all financial statements prepared by or for the Borrower regarding the Borrower's business;
(iv) such information concerning the Collateral, the Borrower and the Borrower's business and affairs as the Bank may reasonably require;
(o) with respect to the Intellectual Property, take all necessary steps and initiate all necessary proceedings, to maintain the registration or recording of the Intellectual Property, to defend the Intellectual Property from infringement and to prevent any licensed or permitted user from doing anything that may invalidate or otherwise impair the Intellectual Property;
(p) with respect to copyright forming part of the Intellectual Property, provide to the Bank waivers of the moral rights thereto executed by all contributors or authors of the copyrighted work;
(q) receive and hold in trust on behalf of and for the benefit of the Bank all proceeds from the sale or other disposition of any Collateral;
(r) consent to the Bank contacting and making enquiries of the Borrower’s lessors, as well as municipal or other government officials or assessors; and
(s) observe and perform the additional covenants and agreements set out in any schedules to this Security Agreement.
7.2 Any amounts required to be paid to the Bank by the Borrower under this Clause 7 shall be immediately payable with interest at the highest rate borne by any of the proceeds Obligations until all amounts have been paid.
7.3 This Security Agreement shall remain in effect until it has been terminated by the Bank by notice of the loan in respect of the financing of an improvement that might give rise termination to the builders’, mechanics’, construction, or similar lien or Borrower and all registrations relating to repay any mortgage financing of an improvementthe Security Agreement have been discharged.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
(3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relates.
Appears in 1 contract
Samples: General Security Agreement (DecisionPoint Systems, Inc.)
Covenants of the Borrower. The Borrower covenants and agrees with the Lender that as long as the loan is outstanding, it shallfollows:
(a) use The Borrower shall, at all times during the loan only for the purposes specified in 1.A. Other loan terms ‘term of this Loan Purpose’;
(b) pay all amounts owing (including interest, costs and fees & charges) under this Agreement and while any loan or other credit facility agreement between of the Borrower Bond is outstanding, keep and maintain with respect to the Project and the Lender;
(c) refrain from System property and prevent waste from being committed casualty insurance and liability insurance with insurers licensed to do business in the State, or risk pool coverage programs described in SDCL Chapter 3-22, against such risks and in such amounts as are customary in the State for entities of the same or similar size and type as the Borrower’s assets (reasonable wear and tear excepted), and maintain similarly situated with facilities of the Assets in good order and repair. Promptly and punctually pay property taxes and all other applicable taxes of any kind whatsoeverSystem’s type, and provide proof of payment such coverage to the Lender within thirty days District.
(b) In the event of cancellation of coverage, the Borrower will promptly obtain replacement insurance with the same or substantially similar coverage and provide proof of such coverage to the District. In the event of a substantial change in insurance, issuance of a new policy, renewal, replacement, or changes in coverage, the Borrower will promptly provide written notice of such changes to the District and provide a new certificate of insurance showing continuous coverage in the amounts required.
(c) The Borrower shall grant the District and its authorized representatives the right, at all reasonable times and upon reasonable notice, to enter upon the property of the due date;Borrower for the purpose of inspecting the System and/or any or all books and records of the Borrower related to the System.
(d) maintain all The Borrower shall immediately upon the execution and delivery of this Loan Agreement, at its assets and property in accordance with all applicable environmental lawsown expense, cause this Loan Agreement, the Borrower Bond, and advise any Collateral Documents granting a first security interest or a first lien in revenues or property, and any financing statements or other documents relating thereto to be filed, recorded, or registered in such manner and in such places as are specified by the Lender promptly of any notices District in writing, and to otherwise do such acts as are reasonably deemed necessary or orders received concerning any advisable by the District to fully perfect and protect the validity and priority of the Borrower(s)’ propertylien and security interest granted to the District, and to continue the perfection of such security interest and lien. The term environmental laws means all applicableBorrower agrees to execute any further documents, current agreements, instruments or other writings that may be requested by the District for such perfection and future federalprotection, provincial, territorial, municipal or local statues, regulations, by-laws, rules, ordinances, guidelines, codes of practice, including executing and policies relating to or pertaining to the environment, conservation, occupational health or safety, the storage, handling and transportation of dangerous goods and the storage, handling and sale of gasoline and petroleum products. The Borrower(s) shall indemnify, defend and hold harmless the Lender, its employees, agents, officers and directors, consultants and legal counsel from and against any present or future claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses arising out of or in any way related to, directly or indirectly, any release, deposit, discharge or disposal of pollutants or hazardous substances or environmental liability of any kind whatsoever. If the Lender, in its sole discretion, deems it necessary, environmental tests or audits shall be conducted at the Borrower(s) expense. In addition to any other provision herein, it shall be a condition precedent to funding that the Borrower(s) will conduct or have conducted an environmental risk assessment (ERA) and that the Lender is satisfied therewith in its sole discretion. If the Lender considers it appropriate based upon the results of the ERA or otherwise, the Lender may require such environmental site inspection report, Phase I, or Phase II to be conducted, at the expense of the Borrower(s), as the Lender deems appropriate or necessary. In such case, the Lender will order the assessment report and the Borrower(s) shall pay all associated costs. All assessments and reports must be satisfactory to the Lender. At the request of the Lender, the Borrower(s) shall execute and deliver an Environmental Certificate in the form attached certifying the Borrower(s) is in compliance with all applicable environmental lawsfiling continuation statements.
(e) Insure and keep fully insured all secured properties for an amount no less than full insurable value of the property and business and the contents necessary for its operation, and shall provide to the Lender adequate evidence of the insurance. The Borrower will notify agrees to maintain the Lender immediately necessary and appropriate accounts, records and books in which full and correct entries are made, capable of any loss or damage to allowing the business assets or property. The policies shall clearly indicate loss payable to the Lender firstly;
(f) pay all taxes, assessments and governmental charges upon it or upon its properties promptly when due and, in any event, prior to the date on which penalties may become attached thereto;
(g) Maintain accurate books and records, and prepare Financial Statements preparation of the Borrower(s) annual financial statements prepared in accordance with generally accepted accounting principles financial and provide same reporting standards promulgated by the Governmental Accounting Standards Board, or the Financial Accounting Standards Board, as appropriate, or an Other Comprehensive Basis of Accounting as defined by the American Institute of Certified Public Accountants, and agrees to maintain Project accounts as separate accounts as required by the Relevant Federal Act. The District and its authorized representatives shall have the right to inspect such books and accounts upon reasonable notice, during normal business hours.
(f) The Borrower agrees that each year it shall prepare and send to the Lender within 4 months of District:
(1) when adopted, its fiscal year-end and, if requestedfinal budget, within 30 days of adoption; and,
(2) an unaudited statement of the financial position of the Borrower as of the close of the fiscal year and the related statements of revenues and expenses, cash flows, fund balances and changes in fund balances for such fiscal year in accordance with financial and reporting standards promulgated by the Governmental Accounting Standards Board, the Financial Accounting Standards Board, or an Other Comprehensive Basis of Accounting as appropriate, and certified by a responsible official of the Borrower. Such statement shall be prepared by the Borrower within 120 days of the end of each quarter the Borrower's fiscal year. In addition, Borrower shall send the District copies of any financial and compliance audit required by state law within 15 days of issuance or acceptance by the State Department of Legislative Audit. In addition, Borrower will send to the District a copy of any internal control review report done by or submitted to the State Department of Legislative Audit within 15 days after it has been issued or accepted by the State Department of Legislative Audit. The Borrower agrees to comply with the Single Audit Act of 1984 as amended. The Borrower agrees to provide to the District, in connection with the issuance and sale by the District of Additional Bonds or with any sale or other assignment by the District of any or all of its fiscal year;rights under the Loan Documents and the Borrower Bond, any and all financial and other information and documents which the District requests in order to prepare a preliminary or final official statement or other disclosure document to be delivered to purchasers or offerees of the Additional Bonds or of direct or indirect interests in any or all of the rights of the District under the Loan Documents and the Borrower Bond. The Borrower represents that any such information and documents supplied by the Borrower, taken as a whole, will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The Borrower agrees, whenever requested by the District, to provide and certify, or cause to be provided and certified, such information concerning the Borrower, the System, its finances, the Project, or such other topics as the District from time to time reasonably considers necessary or appropriate, including such information as necessary to enable the District or its authorized representatives to make any reports required by state or federal law or regulation.
(h) Give After reasonable notice from the Lender prompt notice of any Event of Default (as hereinafter defined); and Give the Lender thirty (30) days prior notice in writing of any intended change in ownership of it’s sharesEPA, if applicable. Notify the Lender of any change in the information contained in any loan application completed by the Borrower shall make available to the EPA such records as the EPA reasonably requires to review and determine compliance with respect to this loan;the Relevant Federal Act.
(i) Observe The Borrower has complied and shall comply with all laws conditions and conform to all valid requirements of governmental authority with respect the Relevant Federal Act pertaining to all the Loan, Project or any part of business and assetsthe System, and covenants to comply with all representations, covenants, terms conditions and contracts upon or under which any of the Borrower’s assets are held and all terms and conditions relating to any franchise or licence held by the Borrower and required agreements, if any, set forth in connection to the Borrower’s operations;Appendix C hereto.
(j) The Borrower(s) Borrower does not and shall NOT without not in the Lender’s prior written consent;construction, maintenance and operation of the System discriminate in any way on the basis of race, creed, color, religion, sex or national origin.
(1k) use any The Borrower will provide an Opinion of Bond Counsel in substantially the form of Appendix D attached hereto prior to closing.
(l) The Borrower represents that within six months after the date of this Loan Agreement, the Borrower expects to incur a substantial binding obligation to commence or acquire the Project to be financed by the Loan and upon incurring such binding obligation, agrees that work on or acquisition of the Project will proceed with due diligence to completion. The Borrower further represents that it expects to expend all proceeds of the loan in respect of the financing of an improvement that might give rise to the builders’, mechanics’, construction, or similar lien or to repay any mortgage financing of an improvement.
(2) redeem or purchase any shares or otherwise reduce the capital of the Borrower(s) or repay subordinated loans; and permit the total of all dividends, shareholder loan payments and other capital withdrawals in the current fiscal year to exceed the Borrower(s) net profit.
Borrower Bond within three (3) create or permit or allow, including its subsidiaries, any mortgage, charge, lien or other security interest any or all years after the date of its assets unless simultaneously with the grant of that security interest provision is then made to secure amounts owing under this Agreement equally and ratably with the indebtedness to which that security interest relatesLoan Agreement.
Appears in 1 contract
Samples: Revenue Obligation Loan Agreement
