Special Covenants If any Company shall fail or omit to perform and observe Section 5.7, 5.8, 5.9, 5.11, 5.12, 5.13 or 5.15 hereof.
General Covenants The Corporation covenants with the Warrant Agent that, so long as any Warrants remain outstanding:
(a) it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations to issue Common Shares upon the exercise of the Warrants;
(b) it will cause the Common Shares from time to time acquired pursuant to the exercise of the Warrants to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(c) all Common Shares which shall be issued upon exercise of the right to acquire provided for herein shall be fully paid and non-assessable;
(d) it will use reasonable commercial efforts to maintain its existence and carry on its business in the ordinary course;
(e) it will use reasonable commercial efforts to ensure that all Common Shares outstanding or issuable from time to time (including without limitation the Common Shares issuable on the exercise of the Warrants) continue to be or are listed and posted for trading on the NEO or CSE (or such other stock exchange acceptable to the Corporation), provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Common Shares ceasing to be listed and posted for trading on the NEO or CSE, so long as the holders of Common Shares receive securities of an entity that is listed on a stock exchange in Canada or the United States, or cash, or the holders of the Common Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the policies of the NEO, CSE or other stock exchange on which the Common Shares are trading;
(f) it will make all requisite filings under applicable Canadian securities legislation including those necessary to remain a reporting issuer not in default in each of the provinces and other Canadian jurisdictions where it is or becomes a reporting issuer for a period of 24 months after the Effective Date, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Common Shares ceasing to be listed and posted for trading on the NEO or CSE (or such other Canadian stock exchange acceptable to the Corporation), so long as the holders of Common Shares receive securities of an entity that is listed on a stock exchange in Canada or the United States, or cash, or the holders of the Common Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the policies of the NEO, CSE or other Canadian stock exchange on which the Common Shares are trading;
(g) the Corporation will promptly notify the Warrant Agent and the Warrantholders in writing of any default under the terms of this Warrant Indenture which remains unrectified for more than ten days following its occurrence;
(h) the Corporation will generally perform and carry out all of the acts or things to be done by it as provided in this Warrant Indenture.
Additional Covenants The Company covenants and agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
Mutual Covenants Each of the Parties covenants and agrees that, except as contemplated in this Agreement, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms:
5.6.1 it shall, and shall cause its subsidiaries to, use commercially reasonable efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder as set forth in Article 6 to the extent the same is within its control and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to consummate the Arrangement, including using its commercially reasonable efforts to (i) obtain all Regulatory Approvals required to be obtained by it, (ii) effect all necessary registrations, filings and submissions of information requested by Governmental Entities required to be effected by it in connection with the Arrangement, (iii) oppose, lift or rescind any injunction or restraining order against it or other order or action against it seeking to stop, or otherwise adversely affecting its ability to make and complete, the Arrangement, and (iv) cooperate with the other Party in connection with the performance by it and its subsidiaries of their obligations hereunder. Subject to the terms and conditions herein provided, none of the Parties shall knowingly take or cause to be taken any action which would reasonably be expected to prevent or materially delay the consummation of the transactions contemplated hereby; and
5.6.2 it shall not take any action, refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, which is inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Arrangement except as permitted by this Agreement.
Interim Covenants During the period between the date of this Agreement and the Closing Date, other than (i) as expressly contemplated by this Agreement, (ii) as set forth in Schedule 6.5 or (iii) as consented to in writing by Buyer:
(a) the Sellers shall (i) cause the Company to (A) be operated in the ordinary course consistent with past practices, (B) maintain and preserve intact its current business organization and use commercially reasonable efforts to keep available the service of the current employees of the Company, (C) use commercially reasonable efforts to maintain and preserve intact its current relationships with its Clients and other Persons with which the Company has material business relationships, (D) comply in all material respects with all applicable Laws and Contracts, (E) maintain in full force and effect all insurance policies in effect on the date hereof, and (ii) not transfer, sell or assign, or permit to be subject to any Encumbrance any of the Purchased Interests; and
(b) without limiting the generality of the foregoing, the Sellers shall not, and shall cause the Company not to:
(i) amend its Organizational Documents;
(ii) purchase or redeem or otherwise acquire any interests in the Company, or make any distribution to its members or with respect to its membership interests other than distributions of cash and other assets of the Company in excess of the Targeted Net Working Capital;
(iii) acquire any business or Person, by merger or consolidation, purchase of substantial assets or equity interests or otherwise;
(iv) enter into any limited liability company agreement, joint venture, partnership, strategic alliance, stockholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement;
(v) pay, discharge, settle or satisfy any claims, liabilities or obligations in excess of $50,000 individually or $100,000 in the aggregate, except in the ordinary course of business consistent in nature and amount with past practice;
(vi) sell, transfer, assign, convey, lease, license, mortgage, pledge or otherwise subject to any Encumbrance any of its material properties or assets, tangible or intangible, except in the ordinary course of business consistent in nature and amount with past practices;
(vii) incur, assume or guarantee (including by way of any agreement to “keep well” or of any similar arrangement) any Indebtedness in excess of $100,000 or amended the terms relating to any Indebtedness in excess of $100,000;
(viii) change any accounting principle, method or practice (including any principles, methods or practices relating to the estimation of reserves or other liabilities) in any material respect;
(ix) (A) terminate or send notice of the termination of, the employment of any officer or investment professional, (B) with respect to any employee of the Company, other than in the ordinary course of business consistent with past practice, enter into a Contract to make any increase in wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to such employee, (C) grant or agree to grant any severance or termination pay or enter into any Contract to make or grant any severance or termination pay or pay any bonus other than pursuant to any such agreement, existing as of the date hereof and set forth in the Company Disclosure Schedule, (D) other than in the ordinary course of business consistent with past practice, grant or agree to grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Employee Benefit Plan or accelerate the time of vesting or payment under any Employee Benefit Plan, or (E) establish, adopt, enter into, amend or terminate any Employee Benefit Plan;
(x) make or incur any capital expenditure or other financial commitment requiring payments in any fiscal year in excess of $50,000 individually or $100,000 in the aggregate;
(xi) make, change or revoke any Tax election or settle or compromise any Tax item; change any method of Tax accounting; prepare any Tax Returns in a manner that is inconsistent with its past practice with respect to the treatment of items on such Tax Returns; file an amended Tax Return or a claim for refund of Taxes with respect to its income, operations or property; or consent to any extension or waiver of the statute of limitations period;
(xii) conduct its billing and cash management customs and practices (including the collection of receivables and payment of payables) other than in the ordinary course of business consistent with past practice;
(xiii) fail to pay its creditors in accordance with their respective credit terms or (if no stated terms) within the time periods applicable to such creditors in the ordinary course of business consistent with past practice;
(xiv) make or effect any loan or advance or other extension of credit to, or an equity investment in, any other Person, in each case in excess of $25,000 individually or $100,000 in the aggregate; or
(xv) enter into any Contract or letter of intent with respect to (whether or not binding), or otherwise commit or agree, whether or not in writing, to do any of the foregoing.
Financial Covenants (a) The Borrower shall maintain or cause to be maintained records and accounts adequate to reflect in accordance with sound accounting practices the operations, resources and expenditures in respect of the Project of the departments or agencies of the Borrower responsible for carrying out the Project or any part thereof.
(b) The Borrower shall:
(i) have the records and accounts referred to in paragraph (a) of this Section including those for the Special Account for each fiscal year audited, in accordance with appropriate auditing principles consistently applied, by independent auditors acceptable to the Association;
(ii) furnish to the Association, as soon as available, but in any case not later than six months after the end of each such year, a certified copy of the report of such audit by said auditors, of such scope and in such detail as the Association shall have reasonably requested; and
(iii) furnish to the Association such other information concerning said records, accounts and the audit thereof as the Association shall from time to time reasonably request.
(c) For all expenditures with respect to which withdrawals from the Credit Account were made on the basis of statements of expenditure, the Borrower shall:
(i) maintain or cause to be maintained, in accordance with paragraph
(a) of this Section, records and accounts reflecting such expenditures;
(ii) retain, until at least one year after the Association has received the audit report for the fiscal year in which the last withdrawal from the Credit Account or payment out of the Special Account was made, all records (contracts, orders, invoices, bills, receipts and other documents) evidencing such expenditures;
(iii) enable the Association’s representatives to examine such records; and
(iv) ensure that such records and accounts are included in the annual audit referred to in paragraph (b) of this Section and that the report of such audit contains a separate opinion by said auditors as to whether the statements of expenditure submitted during such fiscal year, together with the procedures and internal controls involved in their preparation, can be relied upon to support the related withdrawals.
Certain Additional Covenants In addition to the covenants contained elsewhere in this Lease, Tenant covenants, during the Lease Term and for such further time as Tenant occupies any part of the Premises:
(a) to pay when due all Annual Fixed Rent and Additional Rent and all charges provided hereunder for utility services rendered to the Premises and, as further Additional Rent, all charges for additional and special services rendered pursuant to Exhibit D;
(b) to keep the Premises equipped with all safety appliances (including without limitation fire extinguishers) required by law or ordinance or any other regulation of any public authority, to procure all licenses and permits, other than the Building certificate of occupancy, in accordance with the terms of Section 9.2 hereof;
(c) not to place a load upon any floor in the Premises exceeding the floor load per square foot of area which such floor was designed to carry and which is allowed by law as set forth in Exhibit D attached hereto; and not to move any safe, vault or other heavy equipment in, about or out of the Premises except in such manner and at such time as Landlord shall in each instance expressly authorize, such authorization not to be unreasonably withheld or conditioned. Tenant’s business machines and mechanical equipment shall be placed and maintained by Tenant at Tenant’s expense in settings sufficient to absorb and prevent vibration or noise that may be transmitted to the Building structure or to any other space in the Building;
(d) to pay promptly when due all taxes which may be imposed upon personal property (including, without limitation, fixtures and equipment) in the Premises by whomever assessed;
(e) to pay within thirty (30) days after demand as Additional Rent, regardless of whether any default or Event of Default has occurred or whether any proceeding to enforce the Lease has been commenced, all costs and expenses, reasonable attorneys’ fees and disbursements and other fees incurred by Landlord in connection with (i) the successful enforcement by Landlord of any obligation of Tenant under this Lease; (ii) the successful preservation and enforcement of Landlord’s rights and remedies in connection with the Lease; (iii) any unsuccessful attempt by Tenant to enforce any obligation or purported obligation of Landlord under this Lease; (iv) any unsuccessful action or proceeding brought by Tenant against Landlord related to this Lease. If Tenant prevails in any action or proceeding to enforce any provision of this Lease or the unsuccessful attempt by Landlord to enforce any obligation or purported obligation of Tenant under this Lease, Landlord shall pay within thirty (30) days after demand all costs and expenses, reasonable attorneys’ fees and disbursements and other fees incurred by Tenant in connection therewith. This provision shall survive the termination of this Lease;
(f) [intentionally deleted];
(g) to cause all of the windows in the Premises to be kept closed; to keep entirely unobstructed at all times all of the vents, intakes, outlets and grills; and to comply with and observe all reasonable regulations and requirements prescribed by Landlord for the proper functioning of the heating, ventilating and air-conditioning system; and
(h) not to, either directly or indirectly (i) conduct business in the Premises in such a manner that would or may create or (ii) use any contractors and/or labor and/or materials if the use thereof, would or may create, any labor disputes with other contractors and/or labor and/or materials engaged or used by Tenant or Landlord in the construction, maintenance and/or operation of the Unit or the Building or any part thereof. This provision shall apply prior to, as well as during, the Lease Term.