Financial and Other Covenants Borrower shall at all times comply with the financial and other covenants set forth in the Schedule.
Financial and Other Information Except as otherwise expressly provided for in this Agreement, Borrower shall keep proper books of record and account in which full and true entries will be made of all dealings and transactions of or in relation to the business and affairs of Borrower, in accordance with GAAP consistently applied, and Borrower shall cause to be furnished to the Agent (with copies to the other Lenders) from time to time and in a form reasonably acceptable to the Agent, such information as the Agent may reasonably request, including without limitation, the following:
(a) as soon as practicable and in any event within ninety (90) days after the end of each fiscal year of Borrower, (i) audited statements of income, retained earnings and cash flow of Borrower for each year, and a balance sheet of Borrower for such year, setting forth in each case, in comparative form, corresponding figures as of the end of the preceding fiscal year, all in reasonable detail and reasonably satisfactory in scope to the Agent and certified to Borrower by such independent public accountants as are selected by Borrower and reasonably satisfactory to the Agent, whose opinion shall be in scope and substance reasonably satisfactory to the Required Lenders; (ii) a management discussion and analysis of operations as included in the annual report; and (iii) detailed annual operating and capital budgets for the next (then current) Fiscal Year, commencing with Fiscal Year 2005;
(i) as soon as practicable and in any event within forty five (45) days after the end of each fiscal quarter of Borrower except the last fiscal quarter of each Fiscal Year of Borrower, a management discussion and analysis of operations, and (ii) as soon as practicable and in any event within thirty (30) days after the end of each fiscal quarter of Borrower, a compliance certificate of the chief financial officer or controller of Borrower in substantially the form attached as Exhibit 7A (“Compliance Certificate”);
(c) as soon as practicable and in any event within thirty (30) days after the end of each monthly accounting period in each fiscal year of Borrower: (i) statements of income and retained earnings of Borrower for such monthly period and for the period from the beginning of the then current fiscal year to the end of such monthly period, and a balance sheet of Borrower as of the end of such monthly period, setting forth in each case, in comparative form, figures for the corresponding periods in the preceding fiscal year, all in reasonable detail and certified as materially accurate by the chief financial officer or controller of Borrower, subject to changes resulting from normal year-end adjustments;
(d) as soon as practicable and in any event within thirty (30) days after the end of each monthly accounting period in each Fiscal Year of Borrower, a Borrowing Base Certificate for Borrower computed as of the last day of such month, signed by the chief financial officer or controller of Borrower (however, monthly Borrowing Base Certificates will not be required so long as the then most recent Compliance Certificate shows (a) Borrower’s Leverage Ratio, using the EBITDA calculations referred to in Section 7.6(c), is less than 2.50 to 1.0 and (b) the Borrowing Base Limit is greater than or equal to $50,000,000);
(e) at the time of the delivery of the financial statements as required by Section 7.1(a), and in the event that a Compliance Certificate previously delivered as of the last fiscal quarter of the Fiscal Year of Borrower is incorrect in any material respect based on such financial statements, a corrected Compliance Certificate.
Debt and Other Obligations Borrower’s obligations for the payment of the Debt and the performance of the Other Obligations shall be referred to collectively herein as the “Obligations.”
Taxes and Other Liens Each Related Person shall pay and discharge promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income or upon any of its Property as well as all claims of any kind (including claims for labor, materials, supplies and rent) which, if unpaid, might become a Lien upon any or all of its Property; provided, however, each Related Person shall not be required to pay any such tax, assessment, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings diligently conducted by or on behalf of such Related Person and if such Related Person shall have set up reserves therefor adequate under GAAP.
Taxes and Other Obligations Pay all of its taxes, assessments and other obligations, including, but not limited to taxes, costs or other expenses arising out of this transaction, as the same become due and payable, except to the extent the same are being contested in good faith by appropriate proceedings in a diligent manner.
Utilities and Other Services 4.4.1 The Tenant shall arrange, at its own cost and expense, for the installation, connection and supply of all utilities and any other services required by it at or in relation to the Premises.
4.4.2 The Tenant shall pay to the suppliers, and indemnify the Landlord against, all charges for the installation, connection and supply of all utilities and any other services consumed or used at or in relation to the Premises and the Tenant shall comply with the requirements and regulations of the respective suppliers. Tenant to initial
4.4.3 For the purposes of this Clause 4.4, the term “utilities” shall include water, electricity, telecommunications network, gas and any water-borne sewerage systems.
Mechanics' and Other Liens 20.1 If any mechanic's, laborer's or materialman's lien shall at any time be filed against the Property or any part thereof with respect to any work done, or labor or materials furnished, or caused to be furnished, by Tenant or anyone claiming through or under Tenant, or any judgment, attachment or levy is filed or recorded against the Property or any part thereof by anyone claiming through or under Tenant, Tenant, within thirty (30) days after notice of the filing thereof, shall cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Tenant shall fail to cause such lien, judgment, attachment or levy to be discharged within the period aforesaid, then, in addition to any other right or remedy, Landlord may, but shall not be obligated to, discharge the same by bonding proceedings, if permitted by law (and if not so permitted, by deposit in court). Any amount so paid by Landlord, including all costs and expenses paid by Landlord in connection therewith, together with interest thereon at the rate of 18% per annum (or, if lower, the maximum rate permitted by law) from the respective dates of Landlord's so paying any such amount, cost or expense, shall constitute additional rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand.
20.2 Nothing contained in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration to or repair of the Demised Premises, or any part thereof, or as giving Tenant any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanic's liens against Landlord's interest in the Demised Premises. Notice is hereby given that Landlord shall not be liable for any labor or materials furnished or to be furnished to Tenant upon credit, and that no mechanic's or other lien for any such labor or materials shall attach to or affect the reversion or estate or interest of Landlord in and to the Demised Premises.
Litigation and Other Notices Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of the Company obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;
(b) the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against any Loan Party or any Subsidiary as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;
(c) any other development specific to any Loan Party or any Subsidiary that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect;
(d) the development of any ERISA Event that, together with all other ERISA Events that have developed or occurred, would reasonably be expected to have a Material Adverse Effect; and
(e) any change in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification.
Improper and Other Payments (a) Neither the Company, any director, officer, employee thereof, nor any agent or representative of the Company nor any person acting on behalf of any of them, has made, paid or received any unlawful bribes, kickbacks or other similar payments to or from any person or authority, (b) no contributions have been made, directly or indirectly, by the Company to a domestic or foreign political party or candidate; and (c) the internal accounting controls of the Company are believed by the Company’s management to be adequate to detect any of the foregoing under current circumstances.
Stamp and other duties The Borrowers shall pay all stamp, documentary, registration or other like duties or taxes (including any duties or taxes payable by any of the Creditors) imposed on or in connection with any of the Underlying Documents, the Security Documents or the Loan and shall indemnify the Creditors or any of them against any liability arising by reason of any delay or omission by the Borrowers to pay such duties or taxes.
