Covenants of the Borrower. After the date of execution of this Agreement and until payment in full of the Notes and the termination of this Agreement and the other Loan Documents, the Borrower agrees that it will: (a) promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a party; (b) pay and discharge, or cause to be paid and discharged, any taxes, assessments and governmental charges or levies that may be imposed upon the Borrower or upon its income or profits or upon any of its properties prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect thereto; (c) preserve and maintain, or cause to be preserved or maintained, its existence in good standing in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business. (d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Document; (e) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof; (f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effect; (g) promptly notify the Lenders of any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect; (h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower; (i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operating. (i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor. (ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement: A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Samples: Loan Agreement (Trend Drilling Co)
Covenants of the Borrower. After The Borrower will not consolidate with or merge into any other person under circumstances in which Borrower is not the date surviving corporation, or convey, transfer or lease in one or more transactions all or substantially all of execution of this Agreement and until payment in full of the Notes and the termination of this Agreement and the its assets to any other Loan DocumentsPerson, the Borrower agrees that it willunless:
(a) promptly inform such Person is organized, existing and in good standing under the Lenders Laws of the United States, any event which constitutes State of the United States or the District of Columbia and, upon consummation of such transaction, such person will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is be a partyCertificated Air Carrier;
(b) pay such Person executes and dischargedelivers to the Lender a duly authorized, or cause legal, valid, binding and enforceable agreement, reasonably satisfactory in form and substance to Lender, containing an effective assumption by such person of the due and punctual performance and observance of each covenant, agreement and condition in the Borrower Loan Documents to be paid and discharged, any taxes, assessments and governmental charges performed or levies that may be imposed upon the Borrower or upon its income or profits or upon any of its properties prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof observed by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoBorrower;
(c) preserve such Person makes such filings and maintain, recordings with the FAA pursuant to the Transportation Code as shall be necessary to evidence such consolidation or cause to be preserved or maintained, its existence in good standing in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.merger;
(d) file immediately after giving effect to such consolidation or cause to merger no Event of Default shall have occurred and be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Document;continuing; and
(e) promptly notify the Agent net worth (as determined under GAAP) of any proposed change in its name or its assumed name, location such Person immediately after giving effect to such transaction is not materially less than the greater of its registered place of business or (x) the office where its records are kept or any principal place of business stated in Section 3.1(dnet worth (determined as aforesaid) hereof;
(f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with immediately prior to such transaction or (y) the terms net worth (determined as aforesaid) of the same except where non-compliance would not result in a material adverse effect;
(g) promptly notify the Lenders Borrower on March 31, 2001. Upon any such consolidation or merger of any suit Borrower with or proceedings brought against the Borrower or any Guarantor orinto, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent conveyance, transfer or lease by Borrower of all or substantially all of its assets to, any representative of the Lenders or the Agent access during normal business hours person in accordance with this Section 7.2, such Person will succeed to, and permit be substituted for, and may exercise every right and power of, Borrower under the Lenders Borrower Loan Documents with the same effect as if such Person had been named as "Borrower" therein. No such consolidation or merger, or conveyance, transfer or lease, shall have the Agent effect of releasing Borrower or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts Person from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operating.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date obligations, liabilities, covenants or undertakings of this Agreement:
A. Any written notification made by Borrower under the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the BorrowerLoan Documents.
Appears in 1 contract
Samples: Interim Loan Agreement (Republic Airways Holdings Inc)
Covenants of the Borrower. After The Borrower will not consolidate with or merge into any other person under circumstances in which Borrower is not the date surviving corporation, or convey, transfer or lease in one or more transactions all or substantially all of execution of this Agreement and until payment in full of the Notes and the termination of this Agreement and the its assets to any other Loan DocumentsPerson, the Borrower agrees that it willunless:
(a) promptly inform such Person is organized, existing and in good standing under the Lenders Laws of the United States, any event which constitutes State of the United States or the District of Columbia and, upon consummation of such transaction, such person will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is be a partyCertificated Air Carrier;
(b) pay such Person executes and dischargedelivers to the Lender a duly authorized, or cause legal, valid, binding and enforceable agreement, reasonably satisfactory in form and substance to Lender, containing an effective assumption by such person of the due and punctual performance and observance of each covenant, agreement and condition in the Borrower Loan Documents to be paid and discharged, any taxes, assessments and governmental charges performed or levies that may be imposed upon the Borrower or upon its income or profits or upon any of its properties prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof observed by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoBorrower;
(c) preserve such Person makes such filings and maintain, recordings with the FAA pursuant to the Transportation Code as shall be necessary to evidence such consolidation or cause to be preserved or maintained, its existence in good standing in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.merger;
(d) file immediately after giving effect to such consolidation or cause to merger no Event of Default shall have occurred and be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Document;continuing; and
(e) promptly notify the Agent net worth (as determined under GAAP) of any proposed change in its name or its assumed name, location such Person immediately after giving effect to such transaction is not materially less than the greater of its registered place of business or (x) the office where its records are kept or any principal place of business stated in Section 3.1(dnet worth (determined as aforesaid) hereof;
(f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with immediately prior to such transaction or (y) the terms net worth (determined as aforesaid) of the same except where non-compliance would not result in a material adverse effect;
(g) promptly notify the Lenders Borrower on December 31, 2001. Upon any such consolidation or merger of any suit Borrower with or proceedings brought against the Borrower or any Guarantor orinto, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent conveyance, transfer or lease by Borrower of all or substantially all of its assets to, any representative of the Lenders or the Agent access during normal business hours person in accordance with this Section 7.2, such Person will succeed to, and permit be substituted for, and may exercise every right and power of, Borrower under the Lenders Borrower Loan Documents with the same effect as if such Person had been named as "Borrower" therein. No such consolidation or merger, or conveyance, transfer or lease, shall have the Agent effect of releasing Borrower or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts Person from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operating.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date obligations, liabilities, covenants or undertakings of this Agreement:
A. Any written notification made by Borrower under the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the BorrowerLoan Documents.
Appears in 1 contract
Samples: Junior Loan Agreement (Republic Airways Holdings Inc)
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full So long as any portion of the Notes and the termination of this Agreement and the other Loan Documentsis outstanding, the Borrower hereby covenants and agrees that it willwith the Lender as follows:
(a) promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and pay the Loan Documents to which it is a partyin accordance with the provisions of this Agreement;
(b) pay to deliver to the Lender following the end of each fiscal period of the Borrower through the currency of this Agreement a true and discharge, or cause complete copy of the financial statements of the Borrower required by law to be paid prepared and discharged, delivered to the Borrower's shareholders together with any taxes, assessments and governmental charges or levies that may be imposed upon interim financial statements of the Borrower or upon its income or profits or upon any of its properties prior to that the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoLender may reasonably require;
(c) preserve to promptly notify the Lender of any condition or event which constitutes a default or an Event of Default and maintain, or cause to be preserved or maintained, its existence in good standing promptly notify the Lender of any material adverse change in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.Borrower's financial condition;
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code promptly notify the Lender of any State litigation or any other statute of proceeding before any other jurisdictioncourt or Governmental Authority which, and in such manner and form as if adversely determined against the Agent may require Borrower, would materially adversely affect the Borrower's financial condition, affairs or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Documentoperations;
(e) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofto comply at all times with all Applicable Laws;
(f) promptly obtain to pay and upon discharge all taxes and other governmental charges and all contractual obligations calling for the reasonable request, deliver payment of money before it shall become overdue unless and to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result extend only that payment is being contested in a material adverse effectgood faith;
(g) promptly notify to maintain insurance coverage satisfactory to the Lenders Lender on its physical assets and against other business risks in amounts and of types as are customarily carried by companies conducting a similar business, and, in the event of acquisition of additional property, real or personal or of incurrence of additional risks of any suit or proceedings brought against the Borrower or any Guarantor ornature, increase insurance coverage in a manner and to the knowledge extent as prudent business judgment and present practice would dictate; and in the case of all policies covering property in which the BorrowerLender has a security interest of any kind whatsoever, threatened other than those policies protecting against casualty liabilities to third parties, all insurance policies shall provide that the loss payable thereunder shall be payable to the Lender as its interest may appear, and all policies or affecting it or any Guarantor whichcopies, if adversely determined, would reasonably including all endorsements and those required under this Agreement shall be expected to have a material adverse effectdeposited with the Lender;
(h) the Lender and its authorized servants and agents shall be entitled, whenever the Lender deems it necessary, acting reasonably, to enter upon the request offices of the Agent give Borrower and inspect the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, books and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy records thereof and make extracts from therefrom and generally conduct such booksexamination of such books and records as the Lender deems appropriate;
(i) if the Borrower fails to perform any covenant set out in this Agreement, records the Lender may, at its discretion, but need not, perform any such covenant capable of being performed by it and documents may, in the possession Lender's discretion, but need not, make any payments or incur expenditures for such purpose, but no such performance of payment shall be deemed to relieve the Borrower from any default under this Agreement; if the Lender performs any such covenant or incurs any such expenditures, all costs incurred by the Lender in connection therewith shall be added to the Principal and shall bear interest;
(j) the Borrower shall not commit any Event of Default; and
(k) without the prior written approval of the BorrowerLender, relating such approval not to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrowerbe unreasonably withheld, the Lenders and Borrower shall not:
(i) make loans to, provide security for, make investments in, insure or provide guarantees on behalf of any Person;
(ii) declare or pay dividends until the Agent will enter into their standard confidentiality agreement respecting the affairs Loan is repaid;
(iii) repurchase or retire any capital stock of the Borrower;
(iiv) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder dispose of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions or substantially all of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations its assets out of the jurisdictions in which the Rigs are operating.ordinary course of business; and
(iv) The Borrower will use its best efforts and safety practices amalgamate or merge or effect an arrangement with any other corporation or Person or enter into an Agreement to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of do any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrowerforegoing.
Appears in 1 contract
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full So long as any portion of the Notes and the termination of this Agreement and the other Loan Documentsis outstanding, the Borrower hereby covenants and agrees that it willwith the Lender as follows:
(a) promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and pay the Loan Documents to which it is a partyin accordance with the provisions of this Agreement;
(b) pay to deliver to the Lender following the end of each fiscal period of the Borrower through the currency of this Agreement a true and discharge, or cause complete copy of the financial statements of the Borrower required by law to be paid prepared and discharged, delivered to the Borrower’s shareholders together with any taxes, assessments and governmental charges or levies that may be imposed upon interim financial statements of the Borrower or upon its income or profits or upon any of its properties prior to that the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoLender may reasonably require;
(c) preserve to promptly notify the Lender of any condition or event which constitutes a default or an Event of Default and maintain, or cause to be preserved or maintained, its existence in good standing promptly notify the Lender of any material adverse change in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.Borrower’s financial condition;
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code promptly notify the Lender of any State litigation or any other statute of proceeding before any other jurisdictioncourt or Governmental Authority which, and in such manner and form as if adversely determined against the Agent may require Borrower, would materially adversely affect the Borrower’s financial condition, affairs or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Documentoperations;
(e) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofto comply at all times with all Applicable Laws;
(f) promptly obtain to pay and upon discharge all taxes and other governmental charges and all contractual obligations calling for the reasonable request, deliver payment of money before it shall become overdue unless and to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result extend only that payment is being contested in a material adverse effectgood faith;
(g) promptly notify to maintain insurance coverage satisfactory to the Lenders Lender on its physical assets and against other business risks in amounts and of types as are customarily carried by companies conducting a similar business, and, in the event of acquisition of additional property, real or personal or of incurrence of additional risks of any suit or proceedings brought against the Borrower or any Guarantor ornature, increase insurance coverage in a manner and to the knowledge extent as prudent business judgment and present practice would dictate; and in the case of all policies covering property in which the BorrowerLender has a security interest of any kind whatsoever, threatened other than those policies protecting against casualty liabilities to third parties, all insurance policies shall provide that the loss payable thereunder shall be payable to the Lender as its interest may appear, and all policies or affecting it or any Guarantor whichcopies, if adversely determined, would reasonably including all endorsements and those required under this Agreement shall be expected to have a material adverse effectdeposited with the Lender;
(h) the Lender and its authorized servants and agents shall be entitled, whenever the Lender deems it necessary, acting reasonably, to enter upon the request offices of the Agent give Borrower and inspect the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, books and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy records thereof and make extracts from therefrom and generally conduct such booksexamination of such books and records as the Lender deems appropriate;
(i) if the Borrower fails to perform any covenant set out in this Agreement, records the Lender may, at its discretion, but need not, perform any such covenant capable of being performed by it and documents may, in the possession Lender’s discretion, but need not, make any payments or incur expenditures for such purpose, but no such performance of payment shall be deemed to relieve the Borrower from any default under this Agreement; if the Lender performs any such covenant or incurs any such expenditures, all costs incurred by the Lender in connection therewith shall be added to the Principal and shall bear interest;
(j) the Borrower shall not commit any Event of Default; and
(k) without the prior written approval of the BorrowerLender, relating such approval not to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrowerbe unreasonably withheld, the Lenders and Borrower shall not:
(i) make loans to, provide security for, make investments in, insure or provide guarantees on behalf of any Person;
(ii) declare or pay dividends until the Agent will enter into their standard confidentiality agreement respecting the affairs Loan is repaid;
(iii) repurchase or retire any capital stock of the Borrower;
(iiv) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder dispose of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions or substantially all of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations its assets out of the jurisdictions in which the Rigs are operating.ordinary course of business; and
(iv) The Borrower will use its best efforts and safety practices amalgamate or merge or effect an arrangement with any other corporation or Person or enter into an Agreement to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of do any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrowerforegoing.
Appears in 1 contract
Covenants of the Borrower. After The Borrower covenants to the date of execution of this Agreement Lender as follows and until payment in full of confirms that the Notes and the termination of this Agreement and the other Loan Documents, the Borrower agrees that it willLender is relying upon such covenants that:
(a) promptly inform the Lenders of any event which constitutes or Borrower will constituteduly and punctually pay all principal, interest and default interest required to be paid by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a partyBorrower hereunder in the manner specified herein;
(b) the Borrower will maintain its corporate existence at all times;
(c) the Borrower will observe and perform all of its covenants contained in this Loan Agreement and the Ancillary Documents;
(d) subject to the Permitted Encumbrances, the Borrower will not sell, assign, give, transfer, pledge, mortgage, charge, create a security interest in or otherwise encumber any of the Collateral or Mortgaged Lands other than pursuant to the General Security Agreement and the Mortgage;
(e) the Borrower will at all times keep adequately insured by a financially sound or reputable insurer (and will provide satisfactory evidence thereof to the Lender on request) all assets and property of a character customarily insured by persons engaged in the same or similar businesses, similarly situated, including inventory and business interruption insurance against loss or damage of the kinds, customarily insured against by such persons and in such amounts as are customarily insured for by such persons and that the Borrower will forthwith notify the Lender upon the happening of any significant loss and will duly and punctually pay and discharge, or cause to be paid all premiums and dischargedother sums of money for maintaining such insurance and will, at the request of the Lender, cause the Lender to be designated as first loss payee under any taxes, assessments and governmental charges or levies that may be imposed upon contract of insurance maintained by the Borrower or upon its income or profits or upon any of its properties prior to over the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect thereto;
(c) preserve and maintain, or cause to be preserved or maintained, its existence in good standing in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Document;
(e) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business Collateral or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofMortgaged Lands;
(f) promptly obtain the Borrower will file all material returns including income tax returns and upon the reasonable request, deliver filings in all required jurisdictions and will provide copies thereof to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effectLender on request;
(g) promptly notify the Lenders Borrower will pay all taxes (except taxes in dispute which are being contested in good faith) including interest and penalties and to pay or make adequate reserves for the ultimate payment of any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;tax payment which is being contested; and
(h) upon the request of Borrower will permit from time to time, as requested by the Agent give Lender, any person designated by the Lenders or Lender to examine its financial records and will cause the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent chief financial officer or such representative other senior officer as may be appropriate, to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) discuss and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrowerexplain, as the case may be, any of its affairs, finances and accounts and to provide such other information pertaining to its business as the said representative may reasonably require and will, upon request. If requested by the Borrower, the Lenders provide such representative with copies of its monthly accounts receivable listings and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operatingmonthly financial statements.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Samples: Loan Agreement (PDG Remediation Inc)
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full of the Notes and the termination of this Agreement and the other Loan DocumentsGeneral Covenants
8.1 While any Facility Indebtedness is outstanding, the Borrower covenants and agrees that it willwith the Lender as follows:
(a) promptly inform each of the Lenders Borrower and the Mexican Subsidiary will duly and punctually pay or cause to be paid to the Lender each Amount Payable, on the dates, at the places, in the currency and in the manner mentioned herein, including, without limitation, upon the occurrence of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and Default, the Loan Documents to which it is a partyoutstanding balance of the Facility;
(b) each of the Borrower and the Mexican Subsidiary will at all times maintain their corporate existence, obtain and maintain all Authorizations required or necessary in connection with their business and/or any of the Secured Assets and to carry on and conduct their business in accordance with prudent industry standards;
(c) each of the Borrower and the Mexican Subsidiary will keep or cause to be kept proper books of account and make or cause to be made therein true and complete entries of all of its dealings and transactions in relation to their business in accordance with IFRS, and at all reasonable times they will furnish or cause to be furnished to the Lender or its duly authorized agent or attorney such information relating to their operations as the Lender may reasonably request and such books of account shall be open for inspection by the Lender or such agent or attorney, upon reasonable prior notice and during regular business hours in the location of the requested information;
(d) each of the Borrower and the Mexican Subsidiary will provide the Lender and its representatives or such agent or attorney access to all properties, assets and books and records, upon reasonable prior notice and during regular business hours;
(e) the Borrower will ensure that each of the Security Documents will at all times constitute valid and perfected first ranking security on all of the Secured Assets, subject only to Permitted Encumbrances, and at all times take all actions necessary or reasonably requested to create, perfect and maintain the Security Interests granted pursuant to the Security Documents as perfected first ranking security over the Secured Assets, subject only to Permitted Encumbrances;
(f) each of the Borrower and the Mexican Subsidiary will duly and punctually perform and carry out all of the covenants and acts or things to be done by them as provided in this Agreement and each of the Security Documents;
(g) each of the Borrower and the Mexican Subsidiary will comply in all material respects with all Applicable Law and the Borrower will comply in all material respects with Applicable Securities Legislation;
(h) each of the Borrower and the Mexican Subsidiary will: (i) maintain policies of insurance with carriers and in such amounts and covering such risks as are usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower operate, and add and maintain the Lender as first loss payee and a named insured under all such policies to the extent of its interest; and (ii) on an annual basis and/or at any other time, promptly at the request of the Lender, deliver to the Lender all certificates and reports prepared in connection with such insurance;
(i) each of the Borrower and the Mexican Subsidiary will immediately notify the Lender in writing upon becoming aware of: (i) any Default or Event of Default, or (ii) any suit, proceeding or governmental investigation pending or, to the Borrower’s knowledge, threatened, relating to or affecting the Borrower or any of the Secured Assets;
(j) each of the Borrower and the Mexican Subsidiary will maintain or cause to be maintained the Secured Assets in good condition in accordance with prudent industry standards (subject to normal wear and tear);
(k) the Borrower will provide the Lender with unconsolidated monthly financial reports, consisting of each of the Borrower’s balance sheet, income statement, statement of accounts payables and accrued liabilities, standard monthly costs and operating reports provided to management or the board of directors and an aged list of accounts receivable, all in the form agreed with the Lender from time to time, and such other information with respect to the Borrower as the Lender may reasonably request;
(l) the Borrower will, on a consolidated basis with its Subsidiaries and as determined by reference to the previously filed (or, if applicable pursuant to Section 8.5, delivered) reports and the unconsolidated monthly reports referred to in Section 8.1(k), maintain at all times:
(i) Working Capital in excess of $[Redacted due to confidential information] (excluding the Escrow Funds held pursuant to the Escrow Agreement); and
(ii) a minimum of $[Redacted due to confidential information] in unrestricted cash and cash equivalents at all times, computed on a monthly basis (excluding the Escrow Funds held pursuant to the Escrow Agreement);
(m) each of the Borrower and the Mexican Subsidiary will pay and discharge, discharge or cause to be paid and discharged, any taxespromptly when due, assessments all Taxes and governmental charges or levies that may be other amounts imposed upon them or in respect of any of the Borrower Secured Assets or upon its the income or profits or upon therefrom, except for Permitted Encumbrances, as well as all claims of any of its properties prior to the date on which penalties attach thereto kind (including claims for labour, materials, supplies and all lawful claims rent) which, if unpaid, when due, might become or result in a lien or charge upon its propertiestrust thereupon; provided, provided however, that this provision they shall not be deemed required to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect thereto;
(c) preserve and maintain, pay or cause to be preserved paid any such Taxes, other amounts or maintainedclaims if the amount, its existence applicability or validity thereof shall concurrently be contested in good standing in faith by appropriate proceedings diligently conducted and further provided that the state of its incorporation aggregate amount at issue does not exceed $100,000 and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.
(d) file the Borrower or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdictionthe Mexican Subsidiary, and in such manner and form as the Agent case may require be, has posted adequate security for such amounts at issue with the Lender or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that required by the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan DocumentLender;
(en) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof;
(f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility each of the Borrower and it shall comply with the terms of Mexican Subsidiary will cause all necessary and proper steps to be taken diligently to protect and defend the same except where non-compliance would not result in a Secured Assets and the proceeds thereof against any material adverse effect;claim or demand, including without limitation, the employment or use of counsel for the prosecution or defence of litigation and the contest, settlement, release or discharge of any such claim or demand; and
(go) promptly notify if and to the Lenders of any suit or proceedings brought against extent that the Borrower holds or is granted any Guarantor orSecurity Interests, it will take all steps necessary to ensure that all such Security Interests which it holds are attached, enforceable and continuously perfected under the knowledge of PPSA (or such similar legislation pursuant to which such Security Interest is granted) until the Borrower, threatened against obligations they secure are satisfied or affecting it or any Guarantor which, if adversely determined, would reasonably be expected they are released for value where a failure to take the necessary steps could have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operatingMaterial Adverse Effect.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full So long as any portion of the Notes and the termination of this Agreement and the other Loan Documentsis outstanding, the Borrower hereby covenants and agrees that it willwith the Lender as follows:
(a) promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and pay the Loan Documents to which it is a partyin accordance with the provisions of this Loan Agreement;
(b) pay to deliver to the Lender following the end of each fiscal period of the Borrower through the currency of this Loan Agreement a true and discharge, or cause complete copy of the financial statements of the Borrower required by law to be paid prepared and discharged, delivered to the Borrower’s shareholders (and at such time as it is required to be delivered to its shareholders) together with any taxes, assessments and governmental charges or levies that may be imposed upon interim financial statements of the Borrower or upon its income or profits or upon any of its properties prior to that the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoLender may reasonably require;
(c) preserve the Lender and maintainits authorized servants and agents shall be entitled, or cause whenever the Lender deems it necessary, acting reasonably, with prior reasonable notice to be preserved or maintained, its existence in good standing in enter upon the state offices of its incorporation the Borrower and in all other jurisdictions where it is currently conducting business inspect the books and is required to be authorized to so records thereof and make extracts therefrom and generally conduct its business.such examination of such books and records as the Lender deems appropriate;
(d) file if the Borrower fails to perform any covenant set out in this Loan Agreement, the Lender may, at its discretion, but need not, perform any such covenant capable of being performed by it and may, in the Lender’s discretion, but need not, make any payments or cause to be filed in incur expenditures for such offices as purpose, but no such performance of payment shall be required deemed to relieve the Borrower from any default under this Loan Agreement; if the Lender performs any such covenant or appropriate under incurs any applicable Uniform Commercial Code of any State or any other statute of any other jurisdictionsuch expenditures, all costs incurred by the Lender in connection therewith shall be added to the Principal and in such manner and form as shall bear Interest at the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan DocumentInterest Rate;
(e) promptly notify the Agent Borrower shall not commit any Event of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof;Default; and
(f) promptly obtain and upon without the reasonable requestprior written approval of the Lender, deliver such approval not to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreementbe unreasonably withheld, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effect;
(g) promptly notify the Lenders of any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;not:
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower repurchase or retire any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations capital stock of the jurisdictions in which the Rigs are operating.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.Borrower; and
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days dispose of any all or substantially all of its assets out of the following events occurring after the date ordinary course of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrowerbusiness.
Appears in 1 contract
Samples: Loan Agreement (Force Energy Corp.)
Covenants of the Borrower. After the date of execution of this Agreement The Borrower covenants and until payment in full agrees that, so long as all or any part of the Notes and the termination of Outstanding Balance remains unpaid under this Agreement and the other Loan DocumentsAgreement, the Borrower agrees that it willBorrower:
(a) promptly inform shall duly and punctually pay or cause to be paid to the Lenders of any event which constitutes Lender all principal and interest payable hereunder and all other amounts payable hereunder on the dates and the places and in the manner set forth herein or will constitute, otherwise directed by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully the Lender in writing;
(b) shall duly perform its obligations under this Agreement and the all other Loan Documents to which it is a party;
(bc) pay shall cause the obligations of each other Credit Party under all Loan Documents to which it is a party to be performed;
(d) shall at all times maintain its corporate existence and discharge, or cause to be paid maintained the corporate existence of each other Credit Party;
(i) shall comply in all material respects with all material contracts, arrangements, agreements or understandings entered into by the Borrower that are related to its business;
(e) shall furnish and dischargedgive to the Lender (if such is the case) notice that an Event of Default has occurred and, if applicable, is continuing or notice in respect of any taxesevent which would constitute an Event of Default hereunder and specifying the nature of same;
(f) shall carry on and continuously conduct its business in a lawful, efficient, diligent and business-like manner;
(g) shall cause to be carried on and shall cause to be continuously conducted the business of each other Credit Party in a lawful, efficient, diligent and business-like manner;
(h) shall not issue, cause to be issued or allow to be issued any securities of EMC Australia or any options, warrants, purchase rights, or other contracts or commitments that would require EMC or any other person to sell, transfer or otherwise dispose of any equity interests in EMC Australia or for the issue or allotment of any unissued shares in the capital of EMC Australia or any other security convertible into or exchangeable for any such shares;
(i) shall promptly after the Closing Date take all such actions and steps as are necessary to cause the Honeybugle Property to be transferred to EMC Australia (or such other Subsidiary of EMC as is acceptable to the Lender), including delivering instructions to Xxxx Xxxxxxxx and the Xxxx & Xxxxx Xxxxxxxx Family Trust to transfer to EMC Australia all rights and interest to the Honeybugle Property;
(j) shall promptly after the Closing Date take all such actions and steps as are necessary to cause the Nyngan Property to be transferred to EMC Australia (or such other Subsidiary of EMC as is acceptable to the Lender), including delivering instructions to Jervois Mining Limited to transfer all rights and interest to the Nyngan Property as contemplated under the Settlement Agreement;
(k) shall use the proceeds raised from any future equity or debt financings in excess of those necessary to fund EMC’s general administrative expenses and costs required to maintain its interests in its properties and assets, to finance activities related to the advancement of the Australian Properties and the completion of a Feasibility Study (as defined in the Option Agreement) and to secure all necessary mining permits and licenses for the development of the Nyngan Property;
(l) shall maintain the Australian Properties and its right and title thereto in good standing free and clear from all encumbrances other than the Secured Liabilities;
(m) shall maintain and renew any existing insurance policies with respect for so long as the Loan remains outstanding;
(n) shall at any reasonable time during normal business hours on any Business Day, give access to one or more representatives of the Lender to make such inspection as such representative or representatives shall deem proper of any of the Assets;
(o) shall observe and perform its obligations and to cause to be observed and performed the obligations of each other Credit Party, under any Applicable Laws (including environmental laws) and rules, regulations or order of any applicable Governmental Authority and keep proper books and accounts in accordance with United States generally accepted accounting principles;
(p) shall fully pay and discharge as and when same become due and payable all taxes (including local improvement rates), rates, duties and assessments and governmental charges or levies that may be imposed upon levied, rated, charged or assessed against the Borrower or upon its income property or profits any part thereof or upon any other Credit Party or its property or any part thereof, and if the Borrower fails to pay any of its properties prior such taxes, rates, duties or assessments and if it is not in good faith contesting same, the Lender may pay, but shall not be obliged to pay, the same and any amounts so paid by the Lender shall become and form part of the principal sum and shall bear interest at the aforesaid rate until paid;
(q) shall ensure that payments received by the Lender from the Borrower hereunder will be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority (including any interest, additions to tax or penalties applicable thereto). Specifically, however, if at any time any Governmental Authority, applicable law, regulation or international agreement requires the Borrower to make any withholding or deduction from any such payment or other sum payable hereunder to the date on Lender, the Borrower hereby covenants and agrees that the amount due from the Borrower with respect to such payment or other sum payable hereunder will be increased to the extent necessary to ensure that, after the making of such required withholding or deduction, the Lender receives a net sum equal to the sum which penalties attach thereto it would have received had no withholding or deduction been required and all lawful claims whichthe Borrower shall pay the full amount withheld or deducted to the relevant Governmental Authority. The Borrower will, if unpaidupon request, when due, might become a lien or charge upon its propertiesfurnish the Lender with proof reasonably satisfactory to the Lender indicating that the Borrower has made such withholding payment; provided, however, that this provision shall Borrower need not be deemed to require make any withholding payment if the amount or validity of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings such withholding payment is contested in good faith by appropriate and so long timely proceedings and as it to which payment in full is bonded or reserved against by the Borrower. The agreements and obligations of the Borrower contained in this Section 10(q) shall have set aside on its books adequate reserves with respect theretosurvive the termination of this Agreement;
(cr) preserve and maintainshall ensure that in the event the Borrower, or cause to be preserved or maintained, its existence in good standing in the state any of its incorporation Subsidiaries creates or acquires any Subsidiary, the Borrower shall provide prior written notice to the Lender of the creation or acquisition of such new Subsidiary and in take all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent may require or action as may be reasonably necessary required by the Lender to cause each such Subsidiary to guarantee the Secured Liabilities under the Loan Documents and become a Credit Party and, in each case, grant a continuing pledge and security interest in and to the assets of such Subsidiary; and the Borrower (or appropriate under applicable lawits Subsidiary, any financing statement as applicable) shall grant and pledge to the Lender a perfected security interest in the capital or statements partnership or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out participating interest of or related to this Agreement and any Loan Documenteach such newly created Subsidiary;
(es) promptly notify shall cause any Trustee to grant security interest in or pledge the Agent Assets which such Trustee holds in trust for and on behalf of any proposed change Credit Party to and in its name or its assumed name, location favour of its registered place the Lender pursuant to the terms and conditions of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofLoan Documents reasonably requested by the Lender;
(ft) promptly obtain shall ensure that in any event and upon at all times, Encumbrances are granted and created in the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation Assets in favour of the Rigs which are the responsibility of the Borrower and it shall comply Lender, in accordance with the terms of the same except where non-compliance would not result in a material adverse effectSecurity Documents;
(gu) promptly notify shall ensure that no Credit Party shall create, incur, assume or suffer to exist directly or indirectly any Indebtedness, liabilities or obligations (including guarantee) without the Lenders of any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge prior written consent of the BorrowerLender, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effectexcept the Outstanding Balance;
(hv) upon the request shall ensure that no Credit Party shall grant, create, assume or suffer to exist any Encumbrances affecting any of its properties, assets, revenues or undertaking, whether now owned or hereafter acquired except such Encumbrances in favour of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the BorrowerLender;
(iw) comply with and shall use its best efforts to cause its Subsidiariesapply for and obtain any required regulatory or stock exchange or other approval that may be required in connection with this Loan Agreement;
(x) shall not dispose of or suffer or permit the disposal of, including the sale and leaseback of, and its and their agentsshall not grant to any Person the right to acquire, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower Assets or any Subsidiarypart thereof except as contemplated in this Agreement, the Security Documents or the Option Agreement; and
(y) to so comply shall not merge, amalgamate or consolidate with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies another person without the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations prior consent of the jurisdictions in which the Rigs are operatingLender.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Samples: Loan Agreement (Emc Metals Corp.)
Covenants of the Borrower. After the date of execution of this Agreement 7.1 The Borrower covenants and until payment in full of the Notes and the termination of this Agreement and the other Loan Documents, the Borrower agrees with Royal as follows: POSITIVE COVENANTS
a) that it will:
(a) promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially duly and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a party;
(b) punctually pay and discharge, or cause to be paid and discharged, any taxes, assessments and governmental charges or levies that may all amounts required to be imposed upon the Borrower or upon its income or profits or upon any of its properties prior paid by it to Royal pursuant to the date Agreement, including principal, interest, fees for Bankers' Acceptances, standby fees, Breakage Costs, fees for Treasury Contracts, G/L Fees and L/C Fees and any other amounts on which penalties attach thereto the day, at the place, in the Currencies and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while in the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have manner set aside on its books adequate reserves with respect theretoforth herein;
(cb) preserve that it will duly observe and maintain, perform or cause to be preserved observed and performed each and all of the covenants and agreements required by it to be performed and observed as set forth in the Agreement;
c) that it will, and it will cause each of its Subsidiaries, to at all times keep adequately insured by reputable insurers all assets and property in a manner and for amounts consistent with its current practices, and shall duly and punctually pay all premiums and other sums of money for maintaining such insurance;
d) that it will give to Royal prompt notice of any Event of Default or maintainedany event that with notice or elapse of time may be an Event of Default;
e) that it will, and it will cause each of its existence Subsidiaries to, file all material tax returns including income tax returns, corporation capital tax returns and other tax filings in all required jurisdictions;
f) that it will, and it will cause each of its Subsidiaries to, pay all material taxes (except taxes in dispute which are being contested in good standing in faith) including any interest and penalties and to pay or make adequate reserves for the state ultimate payment of any tax payment which is being contested;
g) that it will, and it will cause each of its incorporation Subsidiaries to, actively and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.
(d) file diligently contest or cause to be filed contested in such offices as shall be required good faith, by appropriate and timely proceedings, or appropriate under any applicable Uniform Commercial Code effect a timely and provident settlement of any State or any other statute of any other jurisdictionaction, and in such manner and form as the Agent may require or as may be reasonably necessary or appropriate under applicable lawsuit, any financing statement or statements litigation or other instruments that may be reasonably necessary or desirable or that proceeding the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out result of or related to this Agreement and any Loan Document;
(e) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof;
(f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effect;
(g) promptly notify the Lenders of any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably could be expected to have a material adverse effecteffect on the financial condition or operations of the Primary Business;
(h) upon that it will give to Royal prompt notice of any event of default under the request Note Agreements or under the 1996 Credit Agreement; i) that it will, and it will cause each of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours its Subsidiaries to, observe and permit the Lenders or the Agent or such representative to inspect, comply at all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship times with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions provisions of all applicable permitslaws, licensesregulations, certificates bylaws, ordinances and approvals orders of all any Governmental Agencies now or hereafter granted or obtained Body dealing in relation to its respective business with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations pollution of the jurisdictions environment, toxic and hazardous materials and waste and other environmental hazards, except in which cases where the Rigs are operating.
(i) The Borrower failure to observe or comply will use its best efforts not materially adversely affect the Primary Business, and, from time to time, upon reasonable request by Royal, will provide to Royal evidence satisfactory to Royal acting reasonably of such observance and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) compliance. The Borrower shall notify the Lenders in writing, within five (5) Business Days also provide to Royal notice of any material investigations, control orders, stop orders, injunctions, prosecutions or other regulatory procedures and lawsuits by any Governmental Body relating to pollution of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrowerenvironment;
Appears in 1 contract
Covenants of the Borrower. After The Borrower covenants that on and after the date Closing and for so long as any part of execution the Loan remains outstanding:
3.1. The Borrower will preserve and maintain its existence as a corporation duly organized and validly existing under the laws of the State of Delaware and will remain qualified to do business and in good standing in the State of Connecticut and in each other state or other jurisdiction in which it conducts its business.
3.2. The Borrower will notify the Authority promptly of any material adverse change in the financial condition or business operations of the Borrower.
3.3. The Borrower will pay the Note and all other amounts owing under the Loan Documents according to their terms and comply with each provision of this Loan Agreement and until payment in full each provision of the Notes and the termination of this Agreement and the other Loan Documents, the Documents binding upon it.
3.4. The Borrower agrees that it will:
(a) will promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a party;
(b) pay and discharge, or cause to be paid discharge when due and discharged, any payable all taxes, assessments and governmental charges levied or levies that may be imposed upon the Borrower it, its property, or any part thereof, or upon its income or profits profits, or upon any of its properties prior to the date on which penalties attach thereto and part thereof, as well as all lawful claims for labor, materials and supplies, which, if unpaid, when due, might by law become a lien or charge upon its properties; providedproperty, however, provided that this provision shall such items need not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims paid while being contested by the Borrower contests the validity thereof by appropriate proceedings in good faith and by appropriate legal proceedings so long as it shall have set aside on its books adequate reserves have been established with respect thereto;thereto and the Borrower's title to, and its right to use, its property is not materially and adversely affected thereby.
3.5. The Borrower will not create, incur, assume or suffer to exist any indebtedness for borrowed money except for indebtedness described on SCHEDULE 3.5 hereto (cthe "Permitted Indebtedness"). The Borrower will not, without the prior written consent of the Authority, either directly or indirectly, incur, create, assume or permit to exist any mortgage, pledge, lien, charge, security interest or other encumbrance of any nature whatsoever on any of the Collateral now owned or hereafter acquired.
3.6. The Borrower will not, either directly or indirectly, guarantee, endorse, become surety for, or otherwise be or become responsible for the obligations of any other person or entity, whether by agreement to purchase the indebtedness of any other person, or agreement for the furnishing of funds to any other person or entity, directly or indirectly, through the purchase of goods, supplies or services (or by way of stock purchase, capital contribution, advance or loan) preserve or for the purpose of paying or discharging the indebtedness of any other person or entity or otherwise, except for (i) the endorsement by the Borrower of negotiable instruments for collection in the ordinary course of business, and maintain(ii) travel, relocation and other minor business expenses incurred in the ordinary course of business for the benefit of employees of the Borrower; PROVIDED, HOWEVER, that the Borrower shall be permitted to guarantee the indebtedness of third parties up to the maximum amount set forth on SCHEDULE 3.5 attached hereto, it being understood that the amount of such guarantee shall be deemed to constitute direct indebtedness for borrowed money of the Borrower for purposes of SCHEDULE 3.5 hereof.
3.7. The Borrower shall pay all of its material debts as they become due.
3.8. The Borrower will comply in all material respects with all laws and regulations applicable to it, its properties and/or its business.
3.9. The Borrower covenants and agrees that it will use the proceeds of the Loan for purposes consistent with the description provided in the Borrower's application to the Authority for financial assistance.
3.10. The Borrower will maintain fire, extended coverage, and other hazard insurance policies (including flood insurance if required by the Authority) and maintain liability insurance in form and amount satisfactory to the Authority. Liability insurance shall be in an amount not less than $1,000,000.00 for injury to or death of any one person and $1,000,000.00 for each occurrence in respect of personal injury or death and $250,000.00 for each occurrence of property damage. Without limiting or qualifying any other provision in this Loan Agreement or in the other Loan Documents, all insurance shall be maintained in amounts and manner consistent with the practice and policy of companies engaged in the same or similar businesses in the same or similar locations. Each policy of insurance shall include a clause that it cannot lapse or be canceled or modified except upon at least thirty (30) days' prior written notice to the Authority. Each policy of insurance shall be issued by a company licensed to provide such insurance in the State of Connecticut and acceptable to the Authority and shall be satisfactory in form to the Authority. A copy of each policy of insurance shall be delivered to the Authority at the time of execution of this Loan Agreement. The Authority shall be named as loss payee and as an additional insured on such liability insurance policy.
3.11. The Borrower will indemnify and hold harmless the Authority and its successors, assigns, officers, directors, employees and agents from and against any liabilities, losses, damages, costs or expenses, including reasonable attorneys' fees and costs, arising out of or in connection with the presence of hazardous waste on or in any of the Collateral, or any lien or claim under Section 22a-452a of the Connecticut General Statutes, as amended, or other federal, state or municipal statute, regulation, rule, law or proceeding relating to environmental matters, which indemnity shall survive realization on any of the Collateral, payment in full of the Loan, and termination, exercise and/or release of the Loan Documents, whichever occurs last, at which time such indemnity shall terminate. This Section 3.11 shall not limit any Environmental Indemnity Agreement or similar document, however denominated, that the Borrower may now or hereafter make and/or deliver to the Authority.
3.12. Upon the request of the Authority, the Borrower will execute and deliver or cause to be preserved or maintained, its existence in good standing in the state of its incorporation executed and in all other jurisdictions where it is currently conducting business delivered such further documents and is required to be authorized to so conduct its business.
(d) file or cause to be filed in instruments and do such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, further acts and in such manner and form things as the Agent Authority may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to effectuate more fully the purposes of this Loan Agreement and the express rights of the Authority hereunder to vest more completely in and assure to the Authority its rights under this Loan Agreement and the other Loan Documents. Without limiting the generality of the foregoing, the Borrower shall join with the Authority in executing such financial statements, agreements, notices or other documents or instruments as the Authority shall deem necessary or desirable to create, perfect, preserve, continueprotect, validate maintain or satisfy the Agent's enforce its rights and interests in and its liens on the Collateral. The Borrower shall pay the cost of filing and security interests recording, or refiling and rights re-recording, such documents and instruments in collateral arising out of all public offices in which such filing or related recording, or refiling or re-recording, is deemed by the Authority to this Agreement and any Loan Document;be necessary or desirable.
(e) promptly 3.13. The Borrower will notify the Agent Authority promptly of the occurrence of any proposed change in its name default hereunder or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof;
(f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect of the other Loan Documents and of the actions it intends to this Agreement, the Loan Documentstake in order to cure such default, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effect;
(g) promptly will notify the Lenders Authority within thirty (30) days of becoming aware of any suit default under any other material document, instrument, or proceedings brought against agreement to which the Borrower or any Guarantor or, to the knowledge of its properties are subject which would have a Material Adverse Effect on the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operating.
(i) 3.14. The Borrower will use not discontinue its best efforts and safety practices to prevent the unauthorized releasebusiness, dischargebe dissolved or otherwise suffer or permit any termination of its corporate existence. In particular, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantorshall not "relocate" its business operations outside the State of Connecticut as more fully described in Section 3.19 hereof.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Samples: Loan Agreement (Fuelcell Energy Inc)
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full So long as any portion of the Notes and the termination of this Agreement and the other Loan Documentsis outstanding, the Borrower hereby covenants and agrees that it willwith the Lender as follows:
(a) promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and pay the Loan Documents to which it is a partyin accordance with the provisions of this Agreement;
(b) pay to deliver to the Lender following the end of each fiscal period of the Borrower through the currency of this Agreement a true and discharge, or cause complete copy of the financial statements of the Borrower required by law to be paid prepared and discharged, delivered to the Borrower’s shareholders (and at such time as it is required to be delivered to its shareholders) together with any taxes, assessments and governmental charges or levies that may be imposed upon interim financial statements of the Borrower or upon its income or profits or upon any of its properties prior to that the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoLender may reasonably require;
(c) preserve the Lender and maintainits authorized servants and agents shall be entitled, or cause whenever the Lender deems it necessary, acting reasonably, with prior reasonable notice to be preserved or maintained, its existence in good standing in enter upon the state offices of its incorporation the Borrower and in all other jurisdictions where it is currently conducting business inspect the books and is required to be authorized to so records thereof and make extracts therefrom and generally conduct its business.such examination of such books and records as the Lender deems appropriate;
(d) file if the Borrower fails to perform any covenant set out in this Agreement, the Lender may, at its discretion, but need not, perform any such covenant capable of being performed by it and may, in the Lender’s discretion, but need not, make any payments or cause to be filed in incur expenditures for such offices as purpose, but no such performance of payment shall be required deemed to relieve the Borrower from any default under this Agreement; if the Lender performs any such covenant or appropriate under incurs any applicable Uniform Commercial Code of any State or any other statute of any other jurisdictionsuch expenditures, all costs incurred by the Lender in connection therewith shall be added to the Principal and in such manner and form as shall bear Interest at the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan DocumentInterest Rate;
(e) promptly notify the Agent Borrower shall not commit any Event of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof;Default; and
(f) promptly obtain and upon without the reasonable requestprior written approval of the Lender, deliver such approval not to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreementbe unreasonably withheld, the Borrower shall not:
(i) declare or pay dividends until the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effectis repaid;
(gii) promptly notify the Lenders of repurchase or retire any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs capital stock of the Borrower;
(iiii) comply with and use its best efforts not to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder dispose of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions or substantially all of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations its assets out of the jurisdictions in which the Rigs are operatingordinary course of business; and.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full of the Notes Note and performance by the termination Borrower of this Agreement and the other Borrower’s obligations under the Loan Documents, the Borrower agrees that it will:
(a) promptly inform the Lenders Lender of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a partyDocuments;
(b) pay and discharge, or cause to be paid and discharged, any taxes, assessments and governmental charges or levies that may be imposed upon the Borrower or upon its income or profits or upon any of its properties prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental chargescharge, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretothereto in accordance with GAAP;
(c) preserve and maintain, or cause to be preserved or maintained, (i) its existence in good standing in the state of its incorporation jurisdiction where it is incorporated and in all other jurisdictions where it is currently conducting business business, and is required to be authorized to so conduct (ii) all its business.rights, privileges and franchises thereunder;
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent Lender may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent Lender may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's Lender’s liens on and security interests and rights in collateral arising out of or related to this Agreement and any other Loan Document;
(e) promptly notify the Agent of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereof;
(f) promptly obtain and upon the reasonable request, deliver to the Agent Lender all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, Agreement and the ownership or operation of the Rigs which are the responsibility of the Borrower Vessel and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effectsame;
(gf) promptly notify the Lenders Lender of any suit or proceedings brought against the Borrower or any Guarantor or, to the knowledge of the Borrower, threatened against or affecting it or any Guarantor the Borrower which, if adversely determined, would reasonably be expected to have a material adverse effecteffect upon the financial condition, operations or business of the Borrower;
(hg) upon the request of the Agent Lender, give the Lenders or the Agent Lender or any representative of the Lenders or the Agent Lender access during normal business hours to, and permit the Lenders or the Agent Lender or such representative to inspect, inspect all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(ih) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any SubsidiaryBorrower) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effectAgencies; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs Vessel or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are Vessel is operating.
(i) The Borrower It will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs Vessel or other properties owned or operated by the Borrower or any GuarantorBorrower.
(ii) The Borrower It shall notify the Lenders Lender, in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. (A) Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs Vessel or other properties and operations owned or operated by the Borrower, which, if adversely determined as to the Borrower, would have a material adverse effect on the business or operations of the Borrower.
(B) Receipt of service by the Borrower of any complaint, compliance order, compliance schedule, notice letter, notice of violation, citation or other similar notice or any judicial demand by any court, federal, state or local environmental agency, alleging (i) any spill, unauthorized discharge or release of any Hazardous Substance to the environment from, or as a result of the operations on, the Vessel or other properties owned or operated by the Borrower or (ii) violations of applicable laws, regulations or permits regarding the generation, storage, handling, treatment, transportation, recycling, release or disposal of Hazardous Substances on or as a result of operations on the Vessel or other properties and operations owned or operated by the Borrower, which, if adversely determined as to the Borrower, would have a material adverse effect on the business or operations of the Borrowers.
(C) It is understood by the parties hereto that the aforementioned notices are solely for the Lender’s information, may not otherwise be required by any federal, state or local environmental laws, regulations or ordinances, and are to be considered confidential information by the Lender.
(D) The term “environmental agency” as used herein shall include, but not be limited to, the United States Environmental Protection Agency, the United States Coast Guard, the United States Department of Transportation (in its administration of the Hazardous Materials Transportation Act, 49 § 1801, et seq.) and other analogous or similar Governmental Agencies regulating or administering statutes, regulations or ordinances relating to or imposing liability or standards of conduct concerning the generation, storage, use, production, transportation, handling, treatment, recycling, release or disposal of any Hazardous Substance.
Appears in 1 contract
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full Until all of the Notes and the termination of this Agreement and the other Loan DocumentsBorrower's Obligations have been repaid in full, the Borrower agrees that it willshall promptly notify the Bank of:
(ai) promptly inform any change in the Lenders Borrower's business which could impair the Borrower's ability to repay amounts outstanding under its Obligations as and when due;
(ii) the occurrence of any default, or any event which constitutes which, with the passage of time or will constitute, by the giving of notice (or lapse of timeboth), would result in any default, under any mortgage, indenture or instrument under which there may be issued, or bothby which there may be incurred or evidenced, an Event any of Default the Borrower's indebtedness for borrowed money; and
(iii) all pending or materially and adversely affect its ability to fully perform its obligations under this Agreement and threatened actions, suits or proceedings before any court, arbitrator or governmental or administrative body or agency which might result in any material adverse change in the Loan Documents to which it is a party;Borrower's business, operations, properties or assets or in the Borrower's condition, financial or otherwise.
(b) pay Keep at all times books of records and dischargeaccounts in which full, true and correct entries shall be made of all dealings and transactions in relation to the Borrower's business and affairs;
(c) Maintain the Borrower's existence and keep all property which is required for the Borrower's ongoing operations, business or cause to be paid condition (financial or otherwise) in good repair, working order and discharged, any condition:
(d) Pay and discharge all taxes, assessments and governmental charges or levies that may be imposed upon the Borrower or upon its the Borrower's income or profits profits, or upon any of its properties the Borrower's property, prior to the date on which penalties attach thereto and all lawful claims whichthereto, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while unless the Borrower contests the validity thereof by appropriate proceedings shall contest in good faith and so long as it by proper proceedings the payment of any such tax, assessment, charge or levy and the Borrower shall have set aside on its books maintain adequate reserves with respect thereto;
(c) preserve and maintain, or cause to be preserved or maintained, its existence in good standing in the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, and in such manner and form as the Agent may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan Documenttherefor;
(e) promptly notify Keep all of the Agent Borrower's properties adequately insured at all times with responsible insurance carriers against loss or damage by fire and other hazards, maintain adequate insurance at all times with responsible insurance carriers against liability on account of any proposed change in its name or its assumed name, location of its registered place of business or damage to persons and property and under all workmen's compensation laws and maintain adequate insurance covering such other risks as the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofBank may reasonably request;
(f) promptly obtain Allow the Bank to visit and upon inspect any of the Borrower's properties, examine the Borrower's books of account and other records and files and make copies thereof, and to discuss the Borrower's business affairs and finances with the Borrower's officers and employees, at such reasonable times as the Bank shall request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effect;and
(g) promptly notify Comply with the Lenders requirements of any suit or proceedings brought against the Borrower or any Guarantor orall laws, to the knowledge of the Borrowerrules, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, regulations and permit the Lenders or the Agent or such representative to inspect, all properties belonging orders applicable to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operatingbusiness.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days of any of the following events occurring after the date of this Agreement:
A. Any written notification made by the Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrower
Appears in 1 contract
Covenants of the Borrower. After Until the date Loan has been entirely repaid and all of execution of this Agreement Borrower's obligations to the Department in connection therewith and until payment in full of the Notes and the termination of this Agreement and the other Loan Documentsherewith have been satisfied, the Borrower agrees that it willhereby covenants that:
(a) promptly inform the Lenders Borrower shall use the proceeds of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is solely for the purpose of defraying a partyportion of the Cost;
(b) pay and discharge, or cause to be paid and discharged, any taxes, assessments and governmental charges or levies that may be imposed upon the Borrower or upon its income or profits or upon any shall preserve Borrower's corporate existence, rights, privileges and franchises, and maintain Borrower's good standing as a corporation under the laws of its properties prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long as it shall have set aside on its books adequate reserves with respect theretoDelaware;
(c) preserve the Borrower shall comply with all laws, regulations and maintain, orders of any court or cause to be preserved or maintained, its existence in good standing in governmental body having jurisdiction over the state of its incorporation and in all other jurisdictions where it is currently conducting business and is required to be authorized to so conduct its business.Project;
(d) file or cause the Borrower shall, upon request by the Department, provide financial information and other information concerning Borrower in form reasonably satisfactory to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code the Department, including at least the following:
(i) a certificate of any State or any other statute an authorized officer of any other jurisdictionthe Borrower setting forth the number of employees and their respective job classifications (skilled, semiskilled and in such manner unskilled) employed during the previous year at the Project; and form as (ii) financial statements of the Agent may require or as may be reasonably necessary or appropriate under applicable lawBorrower for its most recent fiscal year, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on including its balance sheet and security interests and rights in collateral arising out of or related to this Agreement and any Loan Documentincome statement;
(e) promptly notify the Agent Borrower shall comply with all of any proposed change in its name or its assumed namethe terms and conditions of this Agreement, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofNote, and the Security Agreement;
(f) promptly obtain and upon the reasonable request, deliver to the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation of the Rigs which are the responsibility of the Borrower and it shall comply with not create any additional debt secured by the terms of the same except where non-compliance would not result in a material adverse effectEquipment;
(g) promptly notify the Lenders of any suit or proceedings brought against the Borrower shall not discriminate against any employee or against any Guarantor orapplicant for employment because of race, to the knowledge of the Borrowercolor, threatened against religious creed, national origin, ancestry, sex or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor age (including, but not limited to, the Rigs) employment upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and permit such representative selection for training, including apprenticeship). The Borrower hereby accepts and agrees to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested be bound by the Borrower, nondiscrimination provisions as set forth in Exhibit "B" attached hereto;
(h) the Lenders and Borrower shall comply with the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrowercontractor integrity provisions as set forth in Exhibit "C" attached hereto;
(i) the Borrower shall comply with the contractor responsibility provisions as set forth in Exhibit "1)" attached hereto;
(j) the Borrower shall pay all the costs of filing financing statements and use any other costs that may be incurred pursuant to the closing and administration of the Loan;
(k) the Borrower shall provide proper facilities at all times for inspection of the Equipment by the Department and its best efforts to cause its Subsidiariesauthorized representatives, and its shall afford full and their agents, contractors and sub-contractors (while free access to the Project to such persons are acting within as may from time to time be designated by the scope Department;
(l) without the Prior written consent of their contractual relationship the Department, the Borrower shall not (i) change its name, merge, consolidate or divide, or (ii) sell, transfer, assign, lease or otherwise convey or dispose of all or any material part of its assets, except in the ordinary course of business;
(m) the Borrower shall comply with the Americans With Disabilities Act Provisions as set forth in Exhibit "E" attached hereto; and
(n) the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies shall provide the non-compliance with which would result in a material adverse effect; and Department yearly with the terms Borrower's current 10K filing with Securities and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operatingExchange Commission.
(io) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
shall create 31 new full-time equivalent jobs (ii) The Borrower shall notify the Lenders one full-time equivalent job is 1,950 hours of employment per year), as specified in writing, Borrower's Application within five (5) Business Days of any of the following events occurring after three years from the date of this Agreement:
A. Any written notification made by Agreement over and above the existing 901.3 full-time equivalent jobs that existed at the time Borrower or any Guarantor to any federal, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release of any Hazardous Substance submitted its Application to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the BorrowerDepartment.
Appears in 1 contract
Samples: Loan Agreement (Intersil Holding Co)
Covenants of the Borrower. After The Borrower covenants that on and after the date Closing and for so long as any part of execution the Loan remains outstanding:
3.1. The Borrower will preserve and maintain its existence as a corporation duly organized and validly existing under the laws of the State of Delaware and will remain qualified to do business and in good standing in the State of Connecticut and in each other state or other jurisdiction in which it conducts its business.
3.2. The Borrower will notify the Authority promptly of any material adverse change in the financial condition or business operations of the Borrower.
3.3. The Borrower will pay the Note and all other amounts owing under the Loan Documents according to their terms and comply with each provision of this Loan Agreement and until payment in full each provision of the Notes and the termination of this Agreement and the other Loan Documents, the Documents binding upon it.
3.4. The Borrower agrees that it will:
(a) will promptly inform the Lenders of any event which constitutes or will constitute, by giving of notice or lapse of time, or both, an Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a party;
(b) pay and discharge, or cause to be paid discharge when due and discharged, any payable all taxes, assessments and governmental charges levied or levies that may be imposed upon the Borrower it, its property, or any part thereof, or upon its income or profits profits, or upon any of its properties prior to the date on which penalties attach thereto and part thereof, as well as all lawful claims for labor, materials and supplies, which, if unpaid, when due, might by law become a lien or charge upon its properties; providedproperty, however, provided that this provision shall such items need not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims paid while being contested by the Borrower contests the validity thereof by appropriate proceedings in good faith and by appropriate legal proceedings so long as it shall have set aside on its books adequate reserves have been established with respect thereto;thereto and the Borrower’s title to, and its right to use, its property is not materially and adversely affected thereby.
3.5. The Borrower will not create, incur, assume or suffer to exist any indebtedness for borrowed money except for indebtedness described on Schedule 3.5 hereto (cthe “Permitted Indebtedness”). The Borrower will not, without the prior written consent of the Authority, either directly or indirectly, incur, create, assume or permit to exist any mortgage, pledge, lien, charge, security interest or other encumbrance of any nature whatsoever on any of the Collateral now owned or hereafter acquired.
3.6. The Borrower will not, either directly or indirectly, guarantee, endorse, become surety for, or otherwise be or become responsible for the obligations of any other person or entity, whether by agreement to purchase the indebtedness of any other person, or agreement for the furnishing of funds to any other person or entity, directly or indirectly, through the purchase of goods, supplies or services (or by way of stock purchase, capital contribution, advance or loan) preserve or for the purpose of paying or discharging the indebtedness of any other person or entity or otherwise, except for (i) the endorsement by the Borrower of negotiable instruments for collection in the ordinary course of business, and maintain(ii) travel, relocation and other minor business expenses incurred in the ordinary course of business for the benefit of employees of the Borrower.
3.7. The Borrower shall pay all of its material debts as they become due.
3.8. The Borrower will comply in all material respects with all laws and regulations applicable to it, its properties and/or its business. In addition to the foregoing, the Borrower will comply with, to the extent applicable to the Borrower, the additional requirements set forth in Schedule 3.8 attached hereto.
3.9. The Borrower covenants and agrees that it will use the proceeds of the Loan for purposes consistent with the description provided in the Borrower’s application to the Authority and the DECD for financial assistance.
3.10. The Borrower will maintain fire, extended coverage, and other hazard insurance policies (including flood insurance if required by the Authority) and maintain liability insurance in form and amount satisfactory to the Authority. Liability insurance shall be in an amount not less than $1,000,000.00 for injury to or death of any one person and $1,000,000.00 for each occurrence in respect of personal injury or death and $250,000.00 for each occurrence of property damage. Without limiting or qualifying any other provision in this Loan Agreement or in the other Loan Documents, all insurance shall be maintained in amounts and manner consistent with the practice and policy of companies engaged in the same or similar businesses in the same or similar locations. Each policy of insurance shall include a clause that it cannot lapse or be canceled or modified except upon at least thirty (30) days’ prior written notice to the Authority. Each policy of insurance shall be issued by a company licensed to provide such insurance in the State of Connecticut and acceptable to the Authority and shall be satisfactory in form to the Authority. A copy of each policy of insurance shall be delivered to the Authority at the time of execution of this Loan Agreement. The Authority shall be named as loss payee and as an additional insured on such liability insurance policy.
3.11. The Borrower will indemnify and hold harmless the Authority and the State of Connecticut and its successors, assigns, officers, directors, employees and agents from and against any liabilities, losses, damages, costs or expenses, including reasonable attorneys’ fees and costs, arising out of or in connection with the presence of hazardous waste on or in any of the Collateral, or any lien or claim under Section 22a-452a of the Connecticut General Statutes, as amended, or other federal, state or municipal statute, regulation, rule, law or proceeding relating to environmental matters, which indemnity shall survive realization on any of the Collateral, payment in full of the Loan, and termination, exercise and/or release of the Loan Documents, whichever occurs last, at which time such indemnity shall terminate. This Section 3.11 shall not limit any Environmental Indemnity Agreement or similar document, however denominated, that the Borrower may now or hereafter make and/or deliver to the Authority and the DECD.
3.12. Upon the request of the Authority, the Borrower will execute and deliver or cause to be preserved or maintained, its existence in good standing in the state of its incorporation executed and in all other jurisdictions where it is currently conducting business delivered such further documents and is required to be authorized to so conduct its business.
(d) file or cause to be filed in instruments and do such offices as shall be required or appropriate under any applicable Uniform Commercial Code of any State or any other statute of any other jurisdiction, further acts and in such manner and form things as the Agent Authority may require or as may be reasonably necessary or appropriate under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to effectuate more fully the purposes of this Loan Agreement and the express rights of the Authority hereunder to vest more completely in and assure to the Authority its rights under this Loan Agreement and the other Loan Documents. Without limiting the generality of the foregoing, the Borrower hereby authorizes the Authority to file and/or record such financing statements, agreements, notices or other documents or instruments as the Authority shall deem necessary or desirable to create, perfect, preserve, continueprotect, validate maintain or satisfy the Agent's enforce its rights and interests in and its liens on the Collateral. The Borrower shall pay the cost of filing and security interests recording, or refiling and rights re-recording, such documents and instruments in collateral arising out of all public offices in which such filing or related recording, or refiling or re-recording, is deemed by the Authority to this Agreement and any Loan Document;be necessary or desirable.
(e) promptly 3.13. The Borrower will notify the Agent Authority promptly of the occurrence of any proposed default hereunder or under any of the other Loan Documents and of the actions it intends to take in order to cure such default, and will notify the Authority within thirty (30) days of becoming aware of any default under any other material document, instrument, or agreement to which the Borrower or its properties are subject which would have a Material Adverse Effect on the Borrower.
3.14. The Borrower will not discontinue its business, be dissolved or otherwise suffer or permit any termination of its corporate existence. In particular, the Borrower shall not “relocate” its business operations outside the State of Connecticut as more fully described in Section 3.19 hereof.
3.15. Without the Authority’s prior written consent, the Borrower shall not permit the transfer of shares of its capital stock, nor issue any additional shares of capital stock, nor redeem or otherwise retire any shares of its capital stock if such event would result in a “change in its name control” in the stock ownership of the Borrower. For purposes hereof, a “change in control” of the stock ownership of the Borrower shall occur if any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than the Borrower, is or its assumed namebecomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), location directly or indirectly, of its registered place fifty-one percent (51%) or more of business or the office where its records are kept or any principal place capital stock of business stated in Section 3.1(d) hereof;the Borrower.
(f) promptly obtain and upon the reasonable request, 3.16. The Borrower shall deliver to the Agent Authority, within the applicable filing period for each such report, (a) a true and correct copy of its Form 10-K submitted by the Borrower to the Securities and Exchange Commission (“SEC”) (together with all authorizationsschedules and notes attached thereto); and (b) a true and correct copy of its Form 10-Q submitted by the Borrower to the SEC (together with all schedules and notes attached thereto). The Borrower will promptly file when due and deliver to the Authority, approvalswithin thirty (30) days after filing same, consents copies of the Borrower’s State of Connecticut Employee Quarterly Earnings Reports (Form UC-5A).
3.17. The Borrower is and licenses will remain in compliance with the Affirmative Action Policy heretofore approved by the Authority.
3.18. The Authority shall from time to time, in its discretion, during regular business hours and renewals thereof required upon reasonable prior notice to the Borrower, have the right of making an inspection of the Collateral, and the Borrower shall assist the Authority in said inspection and shall make available such books and other records relating to the Collateral and the Borrower’s obligations to the Authority hereunder as the Authority may reasonably request.
3.19. The Borrower hereby acknowledges and agrees that the Loan is extended subject to the terms of Section 32-5a of the Connecticut General Statutes, as amended by Public Act 93-218 and Public Act 93-360, and further hereby covenants and agrees that (a) if the Borrower relocates its manufacturing operations at the Torrington Facility or its corporate headquarters in Danbury, Connecticut outside of the State of Connecticut, at any time during the ten (10) year period following the date hereof (the “Benefit Period”), the Borrower shall immediately pay to the Authority (i) all outstanding principal of the Note, accrued interest thereon and all other amounts payable to the Authority under any applicable law or regulation with respect to this Loan Agreement, the Note and the other Loan Documents, if any, plus (ii) a penalty equal to seven and one-half percent (7.5%) of the aggregate principal amount of the Loan (whether or not any amount then remains outstanding under this Loan Agreement, the Note or the other Loan Documents), and (b) if the Borrower relocates it manufacturing operations at the Torrington Facility or its corporate headquarters in Danbury, Connecticut within the State of Connecticut during the Benefit Period, the Borrower shall offer employment at the new location(s) to its employees from the prior location(s), if such employment is available. As used herein, the term “relocate” shall have the meaning given such term by Connecticut General Statutes Section 32-5a, and regulations related thereto, as the same may be amended from time to time. If the Borrower decides to relocate its present business operations in the State of Connecticut to one or more locations outside of the State of Connecticut at any time during the Benefit Period, the Borrower agrees to provide the Authority with immediate written notice of its intent to relocate its business operations, together with such other information concerning such relocation as the Authority may request. The provisions of this Section 3.19 shall survive the payment in full of the principal of the Note, interest thereon and all other amounts payable under this Loan Agreement, the Note and the ownership or operation other Loan Documents and termination of this Loan Agreement.
3.20. To induce the Rigs which are Authority to make the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effect;
(g) promptly notify the Lenders of any suit or proceedings brought against the Borrower or any Guarantor or, Loan to the knowledge of the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;
(h) upon the request of the Agent give the Lenders or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and Borrower has represented in writing to the Agent will enter into their standard confidentiality agreement respecting Authority that it intends to employ at least five hundred (500) permanent full-time employees in the affairs State of Connecticut (the “Employment Threshold”) by the third (3rd) anniversary of the Borrower;
Closing Date (i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with “Employment Threshold Determination Date”). To the extent that the Borrower or any Subsidiary) fails to so comply with all materialattain the Employment Threshold by the Employment Threshold Determination Date, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies then the non-compliance with which would result in Borrower shall pay to the Authority a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained penalty with respect to the Rigs or other properties owned or operated Loan equal to $1,000.00 multiplied by that number of permanent full-time employees employed by the Borrower or any Guarantor in the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations State of Connecticut as of the jurisdictions in Employment Threshold Determination Date which is less than the Rigs are operating.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated Employment Threshold. Any payments by the Borrower or any Guarantorto the Authority under this Section 3.20 shall be treated as a mandatory prepayment of the Loan and shall be applied to the installment payments on account of the Loan most remotely becoming due.
(ii) 3.21. The Borrower shall notify immediately pay to and reimburse the Lenders Authority for any and all reasonable attorneys’ fees incurred by the Authority in writing, within five (5) Business Days of any connection with the administration of the following events occurring after Loan and the date enforcement of the Authority’s rights and remedies hereunder and under the other Loan Documents.
3.22. For all state contracts as defined in Public Act 07-1 having a value in a calendar year of $50,000.00 or more or a combination or series of such agreements or contracts having a value of $100,000.00 or more, the Borrower’s authorized signatory of this Agreement:Loan Agreement hereby expressly acknowledges receipt of the State Elections Enforcement Commission’s notice advising state contractors of state campaign contribution and solicitation prohibitions, and will inform its principals of the contents of such notice. A copy of SEEC Form 11 is attached hereto as Schedule 3.22.
A. Any written notification made 3.23. The Borrower shall deliver to the Authority, at Closing, resolutions adopted by its directors stating that such governing body has adopted a policy to support the Borrower or any Guarantor to any federal, state or local environmental agency nondiscrimination agreements and warranties required under any federalConnecticut General Statutes § 4a-60(a)(1) and § 4a-60a(a)(1), state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release as amended in State of any Hazardous Substance to the environment at, from, or as a result Connecticut Public Act 07-245 and Sections 9(a)(1) and 10(a)(1) of any operations on, the Rigs or other properties and operations owned or operated by the BorrowerPublic Act 07-142.
Appears in 1 contract
Samples: Loan Agreement (Fuelcell Energy Inc)
Covenants of the Borrower. After the date of execution of this Agreement and until payment in full So long as any portion of the Notes and the termination of this Agreement and the other Loan Documentsis outstanding, the Borrower hereby covenants and agrees that it willwith the Lender as follows:
(a) promptly inform to pay the Lenders Loan in accordance with the provisions of this Agreement;
(b) to not commit any Event of Default and upon becoming aware of the occurrence of any Event of Default or the existence of any condition or any event which constitutes or will constitutewhich, by but for the giving of notice or lapse of time, or both, would constitute an Event of Default, to immediately notify the Lender thereof and promptly do everything reasonably possible to cause such Event of Default or materially and adversely affect its ability to fully perform its obligations under this Agreement and the Loan Documents to which it is a party;
(b) pay and discharge, condition or cause event to be paid and discharged, any taxes, assessments and governmental charges or levies that may be imposed upon the Borrower or upon its income or profits or upon any of its properties prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, when due, might become a lien or charge upon its properties; provided, however, that this provision shall not be deemed to require payment of any taxes, assessments, governmental charges, levies or claims while the Borrower contests the validity thereof by appropriate proceedings in good faith and so long eliminated as it shall have set aside on its books adequate reserves with respect theretoquickly as possible;
(c) preserve to maintain its corporate existence and maintainall licences and authorizations from regulatory and governmental authorities or agencies required in order to permit it to carry on its business, or cause to be preserved or maintained, diligently carry on and conduct its existence in good standing business only in the state of its incorporation ordinary course and in all other jurisdictions where it is currently conducting business a proper, efficient and is required to be authorized to so conduct its business.-like manner;
(d) file or cause to be filed in such offices as shall be required or appropriate under any applicable Uniform Commercial Code to, upon the request of any State the Lender, permit the Lender, for the purposes of this Agreement or any other statute agreement or document herein provided for, by its agents, employees and representatives, to examine during normal business hours and without unreasonable disruptions, all relevant books of any account, records, reports and other jurisdictionpapers of the Borrower, and to make copies thereof and to take extracts therefrom, provided that all such information shall be held confidential by the Lender unless reasonably required by the Lender in such manner and form as the Agent may require or as may be reasonably necessary or appropriate exercise of its rights under applicable law, any financing statement or statements or other instruments that may be reasonably necessary or desirable or that the Agent may request in order to create, perfect, preserve, continue, validate or satisfy the Agent's liens on and security interests and rights in collateral arising out of or related to this Agreement and any Loan DocumentAgreement;
(e) promptly notify the Agent at all times comply in all material respects with all applicable laws, rules, governmental restrictions, regulations, guidelines or directives, including all codes of any proposed change in its name or its assumed name, location of its registered place of business or the office where its records are kept or any principal place of business stated in Section 3.1(d) hereofconduct;
(f) promptly obtain and not to lend money to or invest money in any person, whether by loan, acquisition of shares, acquisition of debt obligations or in any other manner whatsoever or guarantee, endorse or otherwise become surety for or upon the reasonable request, deliver to obligations of any other person except by endorsement of negotiable instruments for deposit or collection in the Agent all authorizations, approvals, consents and licenses and renewals thereof required under any applicable law or regulation with respect to this Agreement, the Loan Documents, and the ownership or operation ordinary course of the Rigs which are the responsibility of the Borrower and it shall comply with the terms of the same except where non-compliance would not result in a material adverse effectits business;
(g) promptly notify the Lenders not to create, assume or permit to exist any lien on any of any suit or proceedings brought against the Borrower or any Guarantor orits assets, other than as disclosed to the knowledge of Lender in writing in connection with the Borrower, threatened against or affecting it or any Guarantor which, if adversely determined, would reasonably be expected to have a material adverse effect;Permitted Indebtedness; and
(h) upon the request of the Agent give the Lenders not to convey, sell, lease, transfer or the Agent or any representative of the Lenders or the Agent access during normal business hours to, and permit the Lenders or the Agent or such representative to inspect, all properties belonging to the Borrower or any Guarantor (including, but not limited to, the Rigs) and permit such representative to examine, copy and make extracts from such books, records and documents in the possession of the Borrower, relating to the affairs of the Borrower, as such representative may reasonably request. If requested by the Borrower, the Lenders and the Agent will enter into their standard confidentiality agreement respecting the affairs of the Borrower;
(i) comply with and use its best efforts to cause its Subsidiaries, and its and their agents, contractors and sub-contractors (while such persons are acting within the scope of their contractual relationship with the Borrower or any Subsidiary) to so comply with all material, applicable environmental, health and safety laws, codes and ordinances, and all rules and regulations promulgated thereunder of all Governmental Agencies the non-compliance with which would result in a material adverse effect; and with the terms and conditions of all applicable permits, licenses, certificates and approvals of all Governmental Agencies now or hereafter granted or obtained with respect to the Rigs or other properties owned or operated by the Borrower or any Guarantor the non-compliance with which would result in a material adverse effect; unless such compliance would violate the laws or regulations of the jurisdictions in which the Rigs are operating.
(i) The Borrower will use its best efforts and safety practices to prevent the unauthorized release, discharge, disposal, escape or spill of Hazardous Substances on or about the Rigs or other properties owned or operated by the Borrower or any Guarantor.
(ii) The Borrower shall notify the Lenders in writing, within five (5) Business Days otherwise dispose of any of the following events occurring after the date of this Agreement:
A. Any written notification made its assets unless otherwise agreed to in writing by the Borrower or any Guarantor to any federalLender, state or local environmental agency required under any federal, state or local environmental statute, regulation or ordinance relating to a spill or unauthorized discharge or release except for dispositions made in the ordinary course of any Hazardous Substance to the environment at, from, or as a result of any operations on, the Rigs or other properties and operations owned or operated by the Borrowerbusiness.
Appears in 1 contract
Samples: Loan Agreement (Body & Mind Inc.)
