AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstanding: 6.1 Furnish or cause to be furnished to the Bank the following, each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete: 6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.

Appears in 4 contracts

Sources: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower ~~covenants~~ shall, and ~~agrees that it will during~~ shall cause each of its Subsidiaries to, do all of the ~~term hereof and~~ following, so long as any ~~Obligations~~ of the Loan Documents remain outstanding: ~~6.1 Furnish~~ (a) maintain its corporate existence and its good standing in its jurisdiction of incorporation and maintain qualification in each jurisdiction in which the failure to so qualify could reasonably be expected to cause a Material Adverse Change; (b) maintain in force all licenses, approvals, agreements and Governmental Approvals, the loss of which could reasonably be expected to cause a Material Adverse Change; (c) comply with all statutes, laws, ordinances and government rules and regulations to which it is subject, noncompliance with which could reasonably be expected to cause a Material Adverse Change; (d) without duplication with Section 4.2(k), if required by applicable law, pay and discharge or cause to be ~~furnished~~ paid and discharged, all material sales, use, rental and personal property or similar material taxes and fees (excluding any taxes on any Lender’s net income) which arise and are due prior to each Advance in connection with the Collateral; (e) [reserved]; (f) deliver the following to Administrative Agent: (i) as soon as available, but no later than thirty (30) days after the last day of each month: (A) unaudited financial statements pertaining to the ~~Bank~~ results of operations for the month then ended covering the consolidated operations of Borrower and its Subsidiaries for such month and certified as true and correct by a Responsible Officer of Borrower, consisting of a balance sheet, income statement and cash flow statement, prepared in accordance with GAAP applied on a consistent basis; (B) together with the monthly financial reports, reports as to the following, in a form acceptable to Administrative Agent: accounts receivable, accounts payable aging, and primary key performance indicators, including dollar volume, unit volume, unit mix analysis and average selling price, in each ~~of which shall be~~ case, in form and substance satisfactory to Administrative Agent; (C) copies of ▇▇▇▇▇▇▇▇’s bank statements on all Deposit Accounts; (D) written notice of any material development in, the ~~Bank~~proceedings contemplated by Section 4.2(i) hereof; (E) a duly completed Compliance Certificate signed by a Responsible Officer of Borrower; (F) [reserved]; and (G) written notice of all returns, recoveries, disputes and claims regarding Inventory outside of the Ordinary Course of Business; (ii) (x) as soon as available but no later than thirty (30) days after ▇▇▇▇▇▇▇▇’s biannual investor meeting, which shall occur at least two (2) times per twelve (12) month period and (y) upon Administrative Agent’s reasonable request: (A) an updated Perfection Certificate to reflect any amendments, modifications and updates to information in the Perfection Certificate after the Closing Date; (B) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries; and (C) a copy of ▇▇▇▇▇▇▇▇’s capitalization table, as of the last day of the fiscal quarter then ended; (iii) [reserved]; (iv) (x) within two hundred seventy-five (275) days following the end of the fiscal year ending December 31, 2022 and (y) within two hundred twenty-five (225) days following the end of each fiscal year thereafter, a copy of Borrower’s annual, audited financial statements consisting of a balance sheet, income statement and cash flow statement prepared in conformity with GAAP applied on a basis consistent with that of the preceding fiscal year and presenting fairly Borrower’s financial condition as at the end of that fiscal year and the results of its operations for the twelve (12) month period then ended and certified as true and correct by ▇▇▇▇▇▇▇▇’s chief financial officer (“Annual Financial Statements”), together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Administrative Agent in its reasonable discretion (it being understood that ▇▇▇▇▇▇▇▇'s accounting firm disclosed to Administrative Agent on or prior to the Closing Date and any other public accounting firm of nationally recognized standing, is acceptable to Administrative Agent); provided however, if Borrower’s board of directors does not require audited Annual Financial Statements for any fiscal year, Borrower may instead deliver company prepared Annual Financial Statements to Lender within sixty (60) days of such fiscal year end and Administrative Agent shall waive the opinion requirement in connection therewith for such fiscal year only; (v) within thirty (30) days of its completion, a copy of Borrower’s most recent 409A valuation report; (vi) within thirty (30) days of the effective date or filing date thereof, a copy of any amendment to ▇▇▇▇▇▇▇▇’s Operating Documents; and (vii) such other information (financial or otherwise in respect of the business, condition, operations, performance, properties or prospects of Borrower) as Administrative Agent shall reasonably request from time-to-time. (i) within ten (10) days after approval by the Borrower’s board of directors, and ~~shall be certified by the Borrower to be true, correct and complete: 6.1.1 Within one hundred twenty~~ in any event no later than within sixty (~~120~~60) days after the end of each ~~calendar during~~ fiscal year of Borrower, provide Administrative Agent with annual operating budgets and financial projections approved by the ~~term~~ Borrower’s board of directors, in a form acceptable to Administrative Agent; and (ii) as requested by Administrative Agent, make ▇▇▇▇▇▇▇▇’s chief financial or chief operating officer available to participate in monthly management update calls with Administrative Agent to discuss such information about the operations and financial condition of the ~~Line~~ business of ~~Credit~~the Borrower as Administrative Agent shall reasonably inquire into, at such times reasonably scheduled by Administrative Agent; (h) from and after such time as Borrower becomes a publicly reporting company, promptly as they are available and in any event: (i) ~~annual federal income tax returns~~ at the time of filing of Borrower~~, together~~ ’s Form 10-K with ~~all schedules~~ the Securities and ~~attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days~~ Exchange Commission after the end of each ~~calendar~~ fiscal year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, ~~at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute~~ provide Administrative Agent with the ~~passage~~ financial statements of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice Borrower filed with ~~the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated~~such Form 10-K; and (ii) ~~notify Bank~~ at the time of filing of Borrower’s Form 10-Q with the Securities and Exchange Commission after the end of each of the first three fiscal quarters of Borrower, provide Administrative Agent with the consolidated financial statements of Borrower filed with such Form 10-Q; provided that to the extent the foregoing documents are included in materials otherwise filed with the Securities and Exchange Commission, such documents shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website; (A) promptly upon becoming available, provide Administrative Agent with copies of all statements, reports and notices sent or made available generally by Borrower to its security holders and (B) immediately upon receipt of written notice ~~or institution~~ thereof, provide Administrative Agent with a report of any material legal actions pending or threatened in writing against Borrower or any of its Subsidiaries or the commencement of any action, litigation or governmental proceeding or governmental investigation involving Borrower or any of its Subsidiaries is commenced that is reasonably expected to result in damages or costs to Borrower or any of its Subsidiaries in excess of Five Hundred Thousand Dollars ($500,000); (j) promptly upon receipt of the same, provide Administrative Agent with copies of all notices, requests and other documents received by any other party pursuant to any other material contract, instrument, indenture regarding or relating to any breach or default alleged by or against any party thereto or any other event that could materially impair the value of the interests or rights of Administrative Agent or any Lender or could otherwise be reasonably expected to cause a Material Adverse Change; (k) make due and timely payment or deposit of all federal and state income, and other material taxes, assessments, or contributions required of it by law or imposed upon any Property belonging to it, and will execute and deliver to Administrative Agent, on demand, appropriate certificates attesting to the filing of federal income, state income and franchise tax returns; provided that Borrower need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings which suspend the collection thereof (provided that such proceedings do not involve any substantial danger of the sale, forfeiture or loss of any material item of Collateral or Collateral which in the aggregate is material to Borrower and that Borrower has adequately reserved such amounts or made other appropriate provision therefor, if any, as shall be required in conformity with GAAP; provided further that Borrower shall not change its respective jurisdiction of residence for taxation purposes, without the prior written consent of Administrative Agent; (l) make or cause to be made all filings in respect of all material assessments, fines, fees and other liabilities unless being contested in good faith and for which Borrower maintains adequate reserves; (m) perform all of Borrower’s and each Subsidiary’s obligations imposed by applicable law, rule or regulation with respect to the ~~PBGC under ERISA.~~Collateral in all material respects; ~~6.8 At~~ (n) as soon as possible, and in any ~~time~~ event within three (3) Business Days after Borrower having obtained Knowledge of the occurrence of any Event of Default or Potential Event of Default, provide a written notice setting forth the details of such Event of Default or Potential Event of Default and the action, if any is permitted, which is proposed to be taken by Borrower with respect thereto; (o) as soon as possible, and in any event, no later than three (3) Business Days after receipt, provide Administrative Agent with a copy of any notice of default, notice of termination or similar notice pertaining to a lease of real property where any Collateral is located; (p) from time to time ~~upon request of Bank,~~ execute and deliver such further documents and do such further acts and things as Administrative Agent may reasonably request in order to ~~Bank in form~~ fully effect the purposes of this Agreement and ~~substance satisfactory~~ to ~~Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's~~ protect Administrative Agent’s security interest in ~~its collateral for~~ the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the BankCollateral, and ~~retain Bank as Borrower's main bank of account and deposit.~~ Borrower hereby authorizes Administrative Agent to execute and ~~directs Bank~~ deliver on behalf of Borrower and to ~~debit~~ file such financing statements (including an indication that the ~~Operating Account and make automatic transfers from the Operating Account to make any and~~ financing statement covers “all ~~payments required to be made by~~ assets or all personal property” of Borrower in ~~connection~~ accordance with Section 9-504 of the ~~Line~~ UCC), collateral assignments, notices, control agreements, security agreements and other documents without the signature of ~~Credit~~ ▇▇▇▇▇▇▇▇ either in Administrative Agent’s name or in the name of Administrative Agent as agent and attorney-in-fact for ▇▇▇▇▇▇▇▇; (q) keep Borrower’s and its Subsidiaries’ business and the Collateral insured for risks and in amounts standard for companies in Borrower’s and its Subsidiaries’ industry and location and as Administrative Agent may reasonably request, including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related D&O insurance reasonably satisfactory to ~~the Line of Credit~~Administrative Agent. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio Insurance policies shall be ~~tested on an annual basis at the end of each fiscal year of Borrower beginning~~ in a form, with companies, and ~~including the fiscal year ending December 31~~in amounts that are reasonably satisfactory to Administrative Agent. All property policies shall have a lender’s loss payable endorsement showing Administrative Agent as lender loss payee and waive subrogation against Administrative Agent, ~~2021; provided~~and all liability policies shall show, ~~however~~or have endorsements showing Administrative Agent, ~~that the foregoing covenant~~ as additional insured. Administrative Agent shall be ~~inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default,~~ named as lender loss payee and/or additional insured with respect to any ~~fiscal year~~ such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to Administrative Agent, that it will give Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be materially altered or canceled (other than cancellation for non-payment of premiums, for which ten (10) days’ prior written notice shall be required). At Administrative Agent’s request, Borrower shall deliver certified copies of policies and evidence of all premium payments. Proceeds payable under any policy shall, at Administrative Agent’s option, be payable to Administrative Agent, on account of the Obligations. If Borrower or any of its Subsidiaries fails to obtain insurance as required under this Section 4.2(q) or to pay any amount or furnish any required proof of payment to third persons, Administrative Agent may make (but has no obligation to do so), at Borrower’s expense, all or part of such payment or obtain such insurance policies required in this Section 4.2(q), and take any action under the policies Administrative Agent deems prudent; (r) during all times any amounts remain due from Borrower to Administrative Agent or Lenders under this Agreement or Borrower has any Obligations under the Loan Documents, (i) take all reasonable action to maintain all rights, privileges and franchises material to the business of Borrower; (ii) perform and observe all the terms and provisions of any material contract, instrument, or indenture to be performed or observed by it, maintain each such contract, instrument, or indenture in full force and effect, and enforce such rights under any material contract instrument, or indenture, unless the failure to do so could not be reasonably expected to cause a Material Adverse Change; and (iii) in each case in all material respects, keep proper books and records and accounts in which ~~Borrower has not borrowed~~ full, true and correct entries in conformity with GAAP and all requirements of any ~~Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio~~ governmental or regulatory authorities shall be ~~tested on an annual basis at~~ made of all dealings and transactions and assets in relations to its business and activities; (s) make available to the ~~end~~ Administrative Agent, without expense to the Administrative Agent, ▇▇▇▇▇▇▇▇ and each of ~~each fiscal year of Borrower beginning with~~ Borrower’s officers, employees and ~~including~~ agents and ▇▇▇▇▇▇▇▇’s books, to the ~~fiscal year ending December 31, 2021; provided, however,~~ extent that the ~~foregoing covenant shall be inapplicable, and failure~~ Administrative Agent may reasonably deem them necessary to ~~satisfy~~ prosecute or defend any third party suit or proceeding instituted by or against the ~~foregoing covenant shall not be deemed a default,~~ Administrative Agent or any Lender with respect to any ~~fiscal year~~ Collateral or relating to Borrower; (t) if, after the Closing Date, any Borrower intends to form any direct or indirect Subsidiary, or acquire any direct or indirect Subsidiary, the Borrower shall (or shall cause such Borrower to): (i) ten (10) Business Days prior to such formation or acquisition, provide written notice to Administrative Agent of the formation of such Subsidiary, and, upon Administrative Agent’s request, copies of the Operating Documents of such Subsidiary, and (ii) promptly, and in any event within thirty (30) days (or such later date as Administrative Agent may agree in its sole discretion) of such formation or creation: (A) take all such action as may be reasonably required by Administrative Agent to cause such new Subsidiary to either: (x) provide to Administrative Agent a joinder to this Agreement pursuant to which such Subsidiary becomes a Borrower ~~has not borrowed any Advance~~ hereunder, or (y) guarantee the Obligations of Borrowers under the ~~Line of Credit. 6.13 Maintain at all times~~ Loan Documents, (B) grant a ~~ratio of the Line of Credit~~ security interest in and to the ~~value~~ assets which constitute Collateral of ~~the Property~~ such Subsidiary (~~as determined by the most recent appraisal prepared for and accepted by Bank~~substantially in accordance with this Agreement), ~~which shall not exceed sixty-five (65%) percent. Bank reserves~~ in each case together with such Account Control Agreements and other documents, instruments and agreements reasonably requested by Administrative Agent in accordance with the ~~right to have the Property reappraised from time to time~~terms of this Agreement, ~~which appraisal shall be~~ all in form and substance reasonably satisfactory to ~~Bank~~ Administrative Agent (including being sufficient to grant Administrative Agent a first priority Lien, subject to Permitted Liens) and (C) to pledge all of the direct or beneficial Equity Securities in such Subsidiary; (i) Borrower shall comply with all applicable Health Care Laws, except to the extent the failure to so comply could not reasonably be expected to have a Material Adverse Change, and shall ~~be at Bank's sole cost and expense~~cause each Subsidiary to do the same, except ~~as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal~~ to the ~~Bank~~extent the failure to so comply could not reasonably be expected to have a Material Adverse Change. (ii) Borrower shall maintain a compliance program that addresses the material requirements pursuant to app

Appears in 2 contracts

Sources: Loan and Security Agreement (Shoulder Innovations, Inc.), Loan and Security Agreement (Shoulder Innovations, Inc.)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that it will during the term hereof and so long as any Obligations remain outstanding: 6.1 Furnish or cause to be furnished to the Bank the following, each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete: 6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of ~~Borrower~~B▇▇▇▇▇▇▇'s business and assets and to examine the books, records and assets of every kind and description of Borrower, at ~~Borrower~~B▇▇▇▇▇▇▇'s reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as ~~Borrower~~B▇▇▇▇▇▇▇'s main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.

Appears in 2 contracts

Sources: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)

AFFIRMATIVE COVENANTS OF BORROWER. 6.1.1 The Borrower ~~covenants and agrees that it~~ will ~~during~~ use the term hereof and so long as any Obligations remain outstanding: 6.1 Furnish or cause to be furnished to the Bank the following, each of which shall be in form and substance satisfactory to the Bank, and shall be certified by the Borrower to be true, correct and complete: 6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term proceeds of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory Loan only for the purposes ~~hereof)~~set forth in Section 2.3. ~~6.3 Maintain general liability insurance coverage of such types~~ 6.1.2 The Borrower will furnish BCBSTX: (1) as soon as available and ~~in such amounts as shall be satisfactory to Bank in its sole discretion, but~~ in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at August 31 following the end of each fiscal year of the Borrower, a consolidated and consolidating balance sheet of the Borrower ~~beginning~~ and its Subsidiaries and consolidated and consolidating statements of operations and cash flows of the Borrower and its Subsidiaries for such year, setting forth in each case in comparative form corresponding figures from the preceding fiscal year, all in reasonable detail and satisfactory in scope to BCBSTX, all reported on by Price Waterhouse LLP or other independent certified public accountants of nationally recognized standing as having been prepared in accordance with generally accepted accounting principles applied on a consistent basis; (2) as soon as available and ~~including~~ in any event no later than such statement is filed by any Subsidiary with a state insurance department or other state agency, a copy of any statement or report 20 22 required to be filed with such insurance department or state agency in the ~~fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable,~~ form filed; (3) as soon as available and ~~failure to satisfy the foregoing covenant shall not be deemed a default, with respect to~~ in any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at event within 60 days after the end of each quarter of each fiscal year of the Borrower ~~beginning with~~ (other than the quarter ending May 31), a consolidated balance sheet of the Borrower and ~~including~~ its Subsidiaries, and the related consolidated statements of operations and cash flows, and for the portion of the Borrower's fiscal year ~~ending December 31~~ended at the end of such quarter, ~~2021; provided~~setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Borrower's previous fiscal year, ~~however~~all certified (subject to normal year-end adjustments) as to the fairness of presentation, ~~that the foregoing covenant shall be inapplicable~~generally accepted accounting principles, and ~~failure~~ consistency by the chief financial officer of the Borrower; (4) simultaneously with the delivery of each set of financial statements referred to ~~satisfy~~ in clause (1) above, a certificate of the ~~foregoing covenant shall not be deemed~~ chief financial officer of the Borrower setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Sections 6.1.15 and 6.1.16 on the date of such financial statements and, simultaneously with the delivery of each set of financial statements referred to in clauses (1), (2) and (3) above a ~~default~~certificate stating whether there exists on the date of such certificate any Event of Default and, if any Event of Default exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect ~~to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit.~~thereto; ~~6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property~~ (~~as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%~~5) ~~percent. Bank reserves the right to have the Property reappraised~~ from time to ~~time~~time such additional information regarding the financial position or business of the Borrower and the Subsidiaries as BCBSTX shall reasonably request; and (6) The Borrower shall provide BCBSTX with a copy of each filing it makes with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934 within 15 days of the date such report is filed with the Securities and Exchange Commission. The obligation to deliver annual and quarterly financial statements set forth above may be satisfied by the Company by delivering copies of the Company's Annual Report on Form 10-K or Quarterly Reports on Form 10-Q filed with the Securities and Exchange Commission. 6.1.3 The Borrower and the Subsidiaries shall maintain accounting Records in a manner that is sufficient, ~~which appraisal shall be~~ in ~~form~~ all material respects, to reflect fairly the transactions, resources and ~~substance satisfactory to Bank~~ obligations of the respective companies, and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.to

Appears in 1 contract

Sources: Secured Convertible Term Loan Agreement (Managed Care Solutions Inc)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees ~~that it will during the term hereof and so long~~ as ~~any Obligations remain outstanding~~follows: ~~6.1 Furnish or cause~~ A. Borrower shall furnish Bank monthly financial statements (i.e., consolidated balance sheets and consolidated income statements) no later than thirty (30) days subsequent to ~~be furnished to~~ each month's end for such month. Together with the ~~Bank~~ monthly financial statements, Borrower shall provide a report identifying all the ~~following, each of~~ banks through which ~~shall be in form and substance satisfactory to~~ the ~~Bank~~Borrower is then issuing commercial paper, and ~~shall be certified by~~ the ~~Borrower to be true, correct and complete: 6.1.1~~ principal amount of commercial paper then outstanding issued through each bank. Within ~~one hundred twenty~~ ninety (~~120~~90) days after the end of each ~~calendar during the term~~ fiscal year of Borrower, Bank shall be provided with an audited income statement for such year and an audited balance sheet as of the ~~Line~~ end of ~~Credit~~such year. All statements are to be prepared in accordance with generally accepted principles of auditing and accounting applied on a basis consistent with the accounting practices of Borrower reflected in the audited financial statements for the preceding fiscal year, and year end statements are to be certified without material qualification by Price Waterhouse, by any other "big six" national accounting firm, or by any independent certified public accountants of recognized standing selected by Borrower and acceptable to Bank. Borrower shall also furnish to Bank all other financial statements reasonably requested by Bank. Borrower shall also furnish to Bank copies of (i) ~~annual federal income tax~~ all financial statements, reports and returns ~~of Borrower~~as it shall send to its stockholders, ~~together with all schedules and attachments thereto, and~~ (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Creditall regular, ~~(i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole~~ periodic, or ~~in part by Borrower~~ special reports (including but not limited to ~~the Property), (ii)~~ semi-annual ~~operating~~ reports on Form N-SAR and amendments to its registration statements on Form N-5) which it is or may be required to file with the ~~Property~~Securities & Exchange Commission or any governmental department, bureau, commission or agency succeeding to the functions of the Securities & Exchange Commission, and (iii) ~~an updated rent roll~~ all examination reports of its affairs which it shall receive from the ~~Property~~SBA; ~~and 6.1.3 Promptly~~ all of which documents shall be delivered to Bank forthwith as and ~~in form satisfactory to Bank~~when sent, ~~such other information regarding the operations~~ filed, or ~~financial condition of Borrower as~~ received by Borrower. Bank may ~~reasonably request from time~~ at any time, and without notice to ~~time~~or consent of Borrower, deliver to any participant in the Advances which are the subject of this Agreement, copies of all financial statements, reports, or any other documents delivered to Bank hereunder. ~~6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk~~B. Borrower shall keep proper books of record and accounts and, ~~hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to~~ upon application, give any representative of Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrenceaccess during normal business hours to, and ~~Bank shall be named as additional insured on~~ permit him or her to examine, any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and ~~assets of every kind and description of Borrower, at~~ documents in Borrower's ~~reasonable expense at all reasonable times~~possession relating to the financial affairs of Borrower and to inspect any of its properties. ~~6.5 Promptly notify~~ C. Together with each of the monthly financial statements and the year-end audited financial statements to be provided pursuant to section 7.A. above, Borrower shall also furnish to Bank a certificate signed by its President or Chief Financial Officer stating that he or she has no knowledge of any ~~condition~~ events of default which have occurred under this Agreement or ~~event~~ of any matters which ~~constitutes, or~~ would ~~constitute~~ with the passage of time ~~or giving~~ constitute an event of ~~notice or both, a~~ default ~~under this Agreement~~hereunder, or ~~the Loan and Security Documents~~ if he or ~~any other document or instrument issued in connection herewith, and promptly notify Bank~~ she shall have obtained knowledge of any ~~changes~~ such default or potential default he or she shall disclose in ~~its financial condition which, individually~~ such statement the default or ~~cumulatively, may result in a material adverse change in its financial condition~~potential default and the nature thereof. Each such certificate shall be dated as of the last day of the month or year for which it is submitted. ~~6.6 Maintain~~ D. Borrower shall maintain all insurable property, real and personal, owned by it insured at all times against loss or damage by fire or other normally insured hazards through a responsible insurance carrier selected by it in such amounts and to the extent of the coverage as is customary for companies engaged in similar businesses and in similar locations, but in no event shall said insurance be less than that which Bank, in good ~~standing~~ faith, believes is sufficient and adequate to protect the operating value of the property of Borrower. Borrower shall also carry insurance to cover its ~~corporate existence and its status~~ interest as ~~a foreign corporation qualified to do business~~ mortgagee in ~~those jurisdictions where it is required~~ the property securing the Third Party Loans to be ~~qualified~~effective in the event of any failure of the owner of such property to carry property insurance with respect thereto. The Collateral Agent (used herein as defined in the Intercreditor Agreement) shall be named as secured party loss payee in all such policies. Copies of all such insurance policies shall be delivered to Bank. ~~6.7 If it~~ E. Borrower shall ~~now or hereafter maintain an employee benefit plan subject~~ keep the properties that are material to the ~~Employee Retirement Income Security Act~~ operation of ~~1974 (hereinafter "ERISA")~~its business, ~~promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated;~~ whether owned or leased, in good condition, repair and ~~(ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA~~working order. ~~6.8 At any time~~ F. Borrower shall duly pay and ~~from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or~~ discharge all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all lawful taxes, assessments and governmental charges upon it or ~~relating~~ against its properties prior to ~~its income~~the date on which penalties are attached thereto, or unless and to the ~~operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges~~ extent only that the ~~Loan will~~ same shall be ~~placed~~ contested in good faith and by appropriate proceedings by the Borrower and provided Borrower has established appropriate reserves for the payment of said taxes in accordance with generally accepted accounting practices. G. Borrower shall do all things necessary to maintain its corporate existence, to preserve and keep in full force and effect its rights and franchises necessary to continue its businesses, and to comply with all applicable laws, regulations and ordinances (including without limitation any applicable state or federal securities laws) with respect to which the failure to comply would have a material adverse effect on ~~a tax monitoring system with the costs to be borne by~~ the Borrower. ~~6.10 Maintain~~ H. Borrower shall pay to Bank, upon demand, all reasonable charges and expenses incurred by Bank for attorney's fees and expenses of litigation, in seeking relief from the automatic stay or any other bankruptcy proceedings, or in connection with or in any way related to Bank's relationship with Borrower, with respect to the transactions contemplated by this Agreement, whether hereunder or otherwise, including without limitation those incurred or expended in connection with the preparation of this Agreement or any amendment hereto, extension of the Credit Facility hereunder, and the protection or enforcement of Bank's rights hereunder. In addition thereto, Borrower shall pay to Bank all reasonable charges and expenses incurred by Bank, of every kind or description, arising subsequent to the occurrence of any Event of Default, including but not limited to reasonable attorneys fees and expenses of litigation. I. With respect to each of its Plans, if any, under the Employee Retirement Income Security Act ("ERISA") and the Internal Revenue Code (the "Code"), Borrower represents and warrants that: 1. all funding requirements have been met and will continue to be met on an annual basis; 2. no "prohibited transactions" have occurred and that none of the transactions which are the subject of this Agreement constitute prohibited transactions under the rulings or regulations of ERISA or the Code; 3. all such Plans are and will continue to be qualified Plans; and 4. the Borrower has complied with, and will continue to comply with, all reporting and disclosure requirements under ERISA, the Code, and the applicable rulings and regulations with respect to which the failure to so comply would have a material adverse effect on the Borrower. J. Borrower shall maintain an operating account ~~("Operating Account") for the Property with~~ at the Bank, and ~~retain~~ Bank is hereby authorized to charge such account for all amounts due from Borrower to Bank pursuant to this Agreement as ~~Borrower's main bank~~ and when due. K. Borrower shall indemnify, defend and hold Bank, and its officers, directors, employees, and agents, harmless from and against all claims, injury, damage, loss, costs (including attorneys' fees and costs) and liability of ~~account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make~~ any and ~~all payments required~~ every kind to ~~be made~~ any persons or property by ~~Borrower~~ reason of (i) the breach of any representation or warranty herein or in any other Loan Document, (ii) the failure to fulfill any obligation under this Agreement or under any other Loan Document, or (iii) any other matter relating to, or action taken by Bank in connection ~~with~~ with, the ~~Line of~~ Credit ~~including~~Facility, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined unless caused by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event gross negligence or willful misconduct of ~~Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the~~ Bank.

Appears in 1 contract

Sources: Loan Agreement (Bando McGlocklin Capital Corp)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that ~~it will during~~ from and after the ~~term hereof~~ date hereof, and so long as ~~any~~ the Obligations remain ~~outstanding~~unpaid or this Agreement remains in effect, as follows: ~~6.1 Furnish or cause~~ (a) Borrower shall deliver to ~~be furnished to the Bank the following~~Bank, ~~each of which shall be~~ in form and ~~substance~~ content satisfactory to ~~the~~ Bank, ~~and shall be certified by the Borrower to be true, correct and complete: 6.1.1 Within one hundred twenty~~ within ninety (~~120~~90) days after the ~~end~~ last day of each ~~calendar during the term of the Line of Credit, (i) annual federal income tax returns~~ fiscal year of Borrower, ~~together with all schedules and attachments thereto, and (ii) audited~~ annual financial ~~statement~~ statements of each corporate Borrower on a consolidated basis, including statements of income, expenses, retained earnings and cash flows for the just-ended fiscal year and a balance sheet as of the end of such fiscal year, such statements to be prepared and audited by ~~an independent~~ a certified public accountant acceptable to Bank. (b) Borrower shall deliver to Bank, in ~~accordance with GAAP; 6.1.2 Within one hundred twenty~~ form and content satisfactory to Bank, within forty-five (~~120~~45) days after the ~~end~~ last day of each calendar ~~year during the term~~ quarter, interim financial statements of ~~the Line of Credit~~each corporate Borrower on a consolidated basis, ~~(i) cash flow schedules showing~~ including an income and expense statement and balance sheet, such statements to present fairly the financial condition and results of ~~Borrower~~ operations as of and for the periods specified, to set forth all ~~properties owned in whole~~ material claims and liabilities, contingent or ~~in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property~~otherwise, and ~~(iii) an updated rent roll~~ fully to disclose any Event of Default, including the nature and period of existence thereof, and such statements to be prepared and certified by the chief financial officer of the ~~Property; and~~corporate Borrowers. ~~6.1.3 Promptly and~~ (c) Borrower shall deliver to Bank, in form and content satisfactory to Bank, within forty-five (45) days after the last day of each calendar quarter, such ~~other~~ data, information ~~regarding the operations~~ and reports of or ~~financial condition of~~ concerning Borrower and each Obligor as Bank may reasonably request ~~from time to time. 6.2 Enforce~~ and the ~~Property Ground Lease to cause Tenant to maintain at all times risk, hazard~~ following additional documents and ~~fire insurance for the Property from~~ information: an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals aging of Borrower's ~~business~~ accounts receivable and ~~assets~~ a Borrowing Base Certificate. In addition to the quarterly Borrowing Base Certificate, Borrower shall also provide Lender a Borrowing Base Certificate on a weekly basis. Borrower shall deliver to Bank, in form and content satisfactory to ~~examine~~ Bank, within forty-five (45) days after the last day of each fiscal quarter, a Compliance Certificate and a report from Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc. showing the status of the accounts of Guarantor Denn▇▇ ▇. ▇▇▇▇▇ ▇▇▇ntained with Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc., including account balances and a description of all investments in the accounts. Additionally, Borrower shall deliver to (d) Borrower shall keep adequate records and books of accounts, in which complete entries will be made, reflecting all its financial transactions, and shall maintain its books, accounts and records, including, without limitation, all books and records ~~and assets of every kind and description of Borrower~~evidencing or relating to Collateral, in accordance with generally accepted accounting principles, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under chief executive office as set forth in this Agreement, and shall not remove said books and records from such address without the prior written consent of Bank. (e) Borrower shall permit Bank or any persons duly designated by Bank to call at the ~~Loan~~ places of business of Borrower at any reasonable time, and ~~Security Documents~~ without hindrance or delay to visit, inspect, audit and check any of Borrower's properties, books, records, journals, orders, receipts and any correspondence or other data relating to Borrower's business or any other ~~document~~ transactions between or ~~instrument issued in connection herewith~~among the parties hereto, and ~~promptly notify Bank of any changes in its~~ to make copies thereof and take extracts therefrom, and to discuss Borrower's financial ~~condition which, individually or cumulatively, may result in a material adverse change in its~~ affairs with Borrower's financial ~~condition~~officers and accountants. ~~6.6 Maintain in good standing its corporate existence~~ (f) Borrower shall pay and ~~its status as a foreign corporation qualified to do business in those jurisdictions where it is required~~ discharge or cause to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; paid and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit discharged promptly ~~when due~~ all taxes, ~~assessments~~ assessments, fees, withholdings and other governmental charges or levies imposed upon ~~or relating to its income~~it, or ~~the operation~~ upon its income and profits, or upon any property belonging to it, as well as all claims of ~~its business~~ any kind (including claims for labor, materials and supplies), which, if unpaid, might by law become a lien or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021charge against said property; provided, however, that ~~the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant~~ Borrower shall not be required to pay any such tax, assessment, fee, withholding, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings, and if it shall have either: (i) set aside on its books reserves (segregated to the extent required by sound accounting practice) deemed ~~a default,~~ by Bank adequate with respect thereto, or (ii) established a deposit with Bank sufficient to ~~any fiscal year~~ pay or discharge such tax, assessment, fee, withholding, charge, levy or claim, if such proceedings are adversely determined. (g) Each corporate Borrower shall maintain its existence in good standing in the state of its organization or incorporation, maintain its qualification to conduct business and good standing in all jurisdictions where, under applicable law, the failure so to qualify could have a material adverse effect on Borrower's business or its ability to perform the Loan Documents, and conduct its business in the manner in which ~~Borrower has not borrowed any Advance under~~ it is now conducted subject only to changes made in the ~~Line~~ ordinary course of ~~Credit~~business. ~~6.12 Maintain at all times a~~ (h) Borrower ~~Debt Service Coverage Ratio~~ shall promptly, and in any event within five (5) business days after it becomes aware thereof, notify Bank in writing of ~~not less than l .20x~~ the occurrence of any material adverse change in its or any Obligor's business, properties, operations or conditions (financial or other) which could reasonably be expected to ~~1.0~~impair materially its or such Obligor's ability to perform its or his obligations pursuant to this Agreement, ~~which ratio shall be tested on an annual basis at~~ or any of the ~~end~~ other Loan Documents, the occurrence of ~~each fiscal year~~ any Event of Default or the occurrence of any pending or threatened litigation claiming damages in excess of $25,000 or seeking relief that, if granted, would adversely affect the financial condition or business operations of Borrower ~~beginning with~~ or any Obligor. (i) Borrower shall pay or cause to be paid the principal of, and, if any, the interest and ~~including~~ premium on all indebtedness heretofore or hereafter incurred or assumed by it when and as the ~~fiscal year ending December 31~~same shall become due and payable, ~~2021~~unless such indebtedness be renewed or extended; and faithfully observe, perform and discharge all the covenants, conditions and obligations that are imposed upon it by any and all indentures and other agreements securing or evidencing such indebtedness or pursuant to which such indebtedness is issued, and not permit the continuance of any act or omission that is, or pursuant to the provisions thereof may be declared to be, a default in the payment of principal and interest, unless waived, pursuant to the provisions thereof; provided, however, that ~~the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant~~ Borrower shall not be required to make any payment or to take any other action pursuant to this subparagraph at any time while it shall be currently contesting in good faith by appropriate proceedings its obligations to make such a payment or to take such action, if it shall have either: (i) set aside on its books, reserves (segregated to the extent required by sound accounting practices) deemed adequate with respect thereto, or (ii) established a ~~default~~deposit with Bank sufficient to pay any such amount if such proceedings are adversely determined. (j) Borrower shall take all appropriate action necessary to protect its business and assets consistent with normal practices; conduct its business in a sound and businesslike manner; and do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and all of its rights. (k) Borrower shall pay or reimburse Bank for any reasonable out-of-pocket expenses, including, without limitation, attorneys' fees, incurred by Bank in preparing, negotiating, modifying or amending the Loan Documents. (l) Borrower shall fund all of its "plans" (if any) to which the minimum funding standards of Section 302 of ERISA apply in accordance with such standards; furnish Bank, promptly upon Bank's request, copies of all reports or other statements filed with, or received from, the United States Department of Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation with respect to all of Borrower's "plans"; and promptly advise Bank of the occurrence of any "reportable event" or "prohibited transaction" with respect to any ~~fiscal year~~ such "plan" (as all quoted terms are defined in ~~which Borrower has not borrowed any Advance under the Line of Credit~~ERISA). ~~6.13 Maintain at~~ (m) Borrower shall comply with all ~~times a ratio of the Line of Credit to the value of the Property~~ applicable present and future local, state and federal laws, including, without limitation, environmental laws and regulations; notify Bank immediately if any "hazardous substance" (as ~~determined~~ defined in CERCLA) is released, discharged, disposed of, stored, or discovered on any real or personal property owned or leased by ~~the most recent appraisal prepared~~ Borrower; notify Bank in writing within three (3) days after Borrower receives notice from any governmental authority or any individual or entity claiming violation of any environmental protection law or regulation, or demanding compliance with any environmental protection law or regulation, or demanding payment, indemnity, or contribution for any environmental damage or injury to natural resources; and ~~accepted by Bank), which shall not exceed sixty-five (65%) percent.~~ permit Bank ~~reserves the right to have the Property reappraised~~ from time to ~~time, which appraisal~~ time without hindrance or delay to observe Borrower's operations and to perform tests (including soil tests and ground water tests) for "hazardous substances" on any real or personal property owned or leased by Borrower. (n) Borrower shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the maintain its principal transaction account with Bank.

Appears in 1 contract

Sources: Commercial Loan Agreement (Professional Transportation Group LTD Inc)

AFFIRMATIVE COVENANTS OF BORROWER. The Borrower covenants and agrees with the Bank that ~~it will during the term hereof and~~ for so long as any ~~Obligations~~ indebtedness of the Borrower in respect of the Term Loan or the Revolving Credit Loan or any extension, renewal, rearrangement or other form of any such indebtedness shall remain ~~outstanding~~outstanding and unpaid: ~~6.1 Furnish~~ 4.1 The Borrower will promptly advise the Bank in writing of the occurrence of any material adverse change in the financial condition of the Borrower, and any proposals or ~~cause~~ program to be ~~furnished~~ effected by the Borrower in respect thereof. 4.2 The Borrower will promptly advise the Bank in writing of any pending or threatened claim or litigation asserted against the Borrower which, if successfully prosecuted, would have a material adverse effect upon the financial condition of the Borrower materially and adversely affecting the anticipated operations of the Borrower. 4.3 Within forty-five days following the close of each quarter-annual fiscal year of the Borrower the Borrower will furnish to the Bank the ~~following~~following financial statements concerning the financial conditions of the Borrower, as of the close of such fiscal period and the results of its operations for such period, in each case certified by a senior financial officer of the Borrower to have been prepared in accordance with generally accepted principles of accounting: a) a Balance Sheet or Statement of assets and liabilities as of the close of such period; b) a Statement of Profit and Loss or of Income and Expense for such period; c) a statement of changes in capital accounts as a result of operations during such period; and d) any other similar or relevant financial statements customarily prepared for the Borrower pertaining to its operations and transactions during such fiscal period. 4.4 The Borrower will at all times maintain a net worth, determined in accordance with generally accepted principles of accounting, of not less than fourteen million dollars. 4.5 Within ninety days following the close of each fiscal year of the Borrower the Borrower will furnish to the Bank financial statements of the Borrower equivalent to those specified in Section 4.3 each of which shall be ~~in form and substance satisfactory to the Bank, and shall be~~ certified by ~~the Borrower to be true, correct~~ a reputable and complete: 6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term of the Line of Credit, (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant or firm of such accountants to have been prepared in accordance with ~~GAAP; 6.1.2 Within one hundred twenty (120) days after the end~~ generally accepted principles of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to timeaccounting. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank.

Appears in 1 contract

Sources: Loan Agreement (Home Stake Oil & Gas Co)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that ~~it will during~~ from and after the ~~term hereof~~ date hereof, and so long as ~~any~~ the Obligations remain ~~outstanding~~unpaid or this Agreement remains in effect, as follows: ~~6.1 Furnish or cause~~ (a) Borrower shall deliver to ~~be furnished to the Bank the following~~Bank, ~~each of which shall be~~ in form and ~~substance~~ content satisfactory to ~~the~~ Bank, within ninety (90) days after the last day of each fiscal year of Borrower, annual financial statements of each corporate Borrower on a consolidated basis, including statements of income, expenses, retained earnings and cash flows for the just-ended fiscal year and a balance sheet as of the end of such fiscal year, such statements to be prepared and audited by a certified public accountant acceptable to Bank. (b) Borrower shall deliver to Bank, in form and content satisfactory to Bank, within forty-five (45) days after the last day of each calendar quarter, interim financial statements of each corporate Borrower, including an income and expense statement and balance sheet, such statements to present fairly the financial condition and results of operations as of and for the periods specified, to set forth all material claims and liabilities, contingent or otherwise, and fully to disclose any Event of Default, including the nature and period of existence thereof, and such statements to be prepared and certified by the chief financial officer of the corporate Borrowers. (c) Borrower shall deliver to ~~be true~~Bank, ~~correct~~ in form and ~~complete: 6.1.1 Within~~ content satisfactory to Bank, within forty-five (45) days after the last day of each calendar quarter, such data, information and reports of or concerning Borrower and each Obligor as Bank may reasonably request and the following additional documents and information: an aging of Borrower's accounts receivable and a Borrowing Base Certificate. Borrower shall deliver to Bank, in form and content satisfactory to Bank, within forty-five (45) days after the last day of each fiscal quarter, a Compliance Certificate and a report from Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc. showing the status of the accounts of Guarantor Denn▇▇ ▇. ▇▇▇▇▇ ▇▇▇ntained with Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc., including account balances and a description of all investments in the accounts. Additionally, Borrower shall deliver to Bank, in form and content satisfactory to Bank, within one hundred twenty (120) days after the ~~end~~ last day of each calendar ~~during the term~~ year, a personal financial statement on Denn▇▇ ▇. ▇▇▇▇▇. (d) Borrower shall keep adequate records and books of ~~the Line of Credit~~accounts, ~~(i) annual federal income tax returns of Borrower~~in which complete entries will be made, ~~together with~~ reflecting all ~~schedules and attachments thereto~~its financial transactions, and ~~(ii) audited annual financial statement of Borrower prepared by an independent certified public accountant~~ shall maintain its books, accounts and records, including, without limitation, all books and records evidencing or relating to Collateral, in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrowergenerally accepted accounting principles, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under chief executive office as set forth in this Agreement, and shall not remove said books and records from such address without the prior written consent of Bank. (e) Borrower shall permit Bank or any persons duly designated by Bank to call at the ~~Loan~~ places of business of Borrower at any reasonable time, and ~~Security Documents~~ without hindrance or delay to visit, inspect, audit and check any of Borrower's properties, books, records, journals, orders, receipts and any correspondence or other data relating to Borrower's business or any other ~~document~~ transactions between or ~~instrument issued in connection herewith~~among the parties hereto, and ~~promptly notify Bank of any changes in its~~ to make copies thereof and take extracts therefrom, and to discuss Borrower's financial ~~condition which, individually or cumulatively, may result in a material adverse change in its~~ affairs with Borrower's financial ~~condition~~officers and accountants. ~~6.6 Maintain in good standing its corporate existence~~ (f) Borrower shall pay and ~~its status as a foreign corporation qualified to do business in those jurisdictions where it is required~~ discharge or cause to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; paid and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit discharged promptly ~~when due~~ all taxes, ~~assessments~~ assessments, fees, withholdings and other governmental charges or levies imposed upon ~~or relating to its income~~it, or ~~the operation~~ upon its income and profits, or upon any property belonging to it, as well as all claims of ~~its business~~ any kind (including claims for labor, materials and supplies), which, if unpaid, might by law become a lien or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021charge against said property; provided, however, that ~~the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant~~ Borrower shall not be required to pay any such tax, assessment, fee, withholding, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings, and if it shall have either: (i) set aside on its books reserves (segregated to the extent required by sound accounting practice) deemed ~~a default,~~ by Bank adequate with respect thereto, or (ii) established a deposit with Bank sufficient to ~~any fiscal year~~ pay or discharge such tax, assessment, fee, withholding, charge, levy or claim, if such proceedings are adversely determined. (g) Each corporate Borrower shall maintain its existence in good standing in the state of its organization or incorporation, maintain its qualification to conduct business and good standing in all jurisdictions where, under applicable law, the failure so to qualify could have a material adverse effect on Borrower's business or its ability to perform the Loan Documents, and conduct its business in the manner in which ~~Borrower has not borrowed any Advance under~~ it is now conducted subject only to changes made in the ~~Line~~ ordinary course of ~~Credit~~business. ~~6.12 Maintain at all times a~~ (h) Borrower ~~Debt Service Coverage Ratio~~ shall promptly, and in any event within five (5) business days after it becomes aware thereof, notify Bank in writing of ~~not less than l .20x~~ the occurrence of any material adverse change in its or any Obligor's business, properties, operations or conditions (financial or other) which could reasonably be expected to ~~1.0~~impair materially its or such Obligor's ability to perform its or his obligations pursuant to this Agreement, ~~which ratio shall be tested on an annual basis at~~ or any of the ~~end~~ other Loan Documents, the occurrence of ~~each fiscal year~~ any Event of Default or the occurrence of any pending or threatened litigation claiming damages in excess of $25,000 or seeking relief that, if granted, would adversely affect the financial condition or business operations of Borrower ~~beginning with~~ or any Obligor. (i) Borrower shall pay or cause to be paid the principal of, and, if any, the interest and ~~including~~ premium on all indebtedness heretofore or hereafter incurred or assumed by it when and as the ~~fiscal year ending December 31~~same shall become due and payable, ~~2021~~unless such indebtedness be renewed or extended; and faithfully observe, perform and discharge all the covenants, conditions and obligations that are imposed upon it by any and all indentures and other agreements securing or evidencing such indebtedness or pursuant to which such indebtedness is issued, and not permit the continuance of any act or omission that is, or pursuant to the provisions thereof may be declared to be, a default in the payment of principal and interest, unless waived, pursuant to the provisions thereof; provided, however, that ~~the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant~~ Borrower shall not be required to make any payment or to take any other action pursuant to this subparagraph at any time while it shall be currently contesting in good faith by appropriate proceedings its obligations to make such a payment or to take such action, if it shall have either: (i) set aside on its books, reserves (segregated to the extent required by sound accounting practices) deemed adequate with respect thereto, or (ii) established a ~~default~~deposit with Bank sufficient to pay any such amount if such proceedings are adversely determined. (j) Borrower shall take all appropriate action necessary to protect its business and assets consistent with normal practices; conduct its business in a sound and businesslike manner; and do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and all of its rights. (k) Borrower shall pay or reimburse Bank for any reasonable out-of-pocket expenses, including, without limitation, attorneys' fees, incurred by Bank in preparing, negotiating, modifying or amending the Loan Documents. (l) Borrower shall fund all of its "plans" (if any) to which the minimum funding standards of Section 302 of ERISA apply in accordance with such standards; furnish Bank, promptly upon Bank's request, copies of all reports or other statements filed with, or received from, the United States Department of Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation with respect to all of Borrower's "plans"; and promptly advise Bank of the occurrence of any "reportable event" or "prohibited transaction" with respect to any ~~fiscal year~~ such "plan" (as all quoted terms are defined in ~~which Borrower has not borrowed any Advance under the Line of Credit~~ERISA). ~~6.13 Maintain at~~ (m) Borrower shall comply with all ~~times a ratio of the Line of Credit to the value of the Property~~ applicable present and future local, state and federal laws, including, without limitation, environmental laws and regulations; notify Bank immediately if any "hazardous substance" (as ~~determined~~ defined in CERCLA) is released, discharged, disposed of, stored, or discovered on any real or personal property owned or leased by ~~the most recent appraisal prepared~~ Borrower; notify Bank in writing within three (3) days after Borrower receives notice from any governmental authority or any individual or entity claiming violation of any environmental protection law or regulation, or demanding compliance with any environmental protection law or regulation, or demanding payment, indemnity, or contribution for any environmental damage or injury to natural resources; and ~~accepted by Bank), which shall not exceed sixty-five (65%) percent.~~ permit Bank ~~reserves the right to have the Property reappraised~~ from time to ~~time, which appraisal~~ time without hindrance or delay to observe Borrower's operations and to perform tests (including soil tests and ground water tests) for "hazardous substances" on any real or personal property owned or leased by Borrower. (n) Borrower shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the maintain its principal transaction account with Bank.

Appears in 1 contract

Sources: Commercial Loan Agreement (Professional Transportation Group LTD Inc)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees ~~that it will during the term hereof and so long~~ as ~~any Obligations remain outstanding~~follows: ~~6.1 Furnish or cause~~ A. Borrower shall furnish Bank monthly financial statements (i.e., consolidated balance sheets and consolidated income statements) no later than thirty (30) days subsequent to ~~be furnished to~~ each month's end for such month. Together with the ~~Bank~~ monthly financial statements, Borrower shall provide a report identifying all the ~~following, each of~~ banks through which ~~shall be in form and substance satisfactory to~~ the ~~Bank~~Borrower is then issuing commercial paper, and ~~shall be certified by~~ the ~~Borrower to be true, correct and complete: 6.1.1~~ principal amount of commercial paper then outstanding issued through each bank. Within ~~one hundred twenty~~ ninety (~~120~~90) days after the end of each ~~calendar during the term~~ fiscal year of Borrower, Bank shall be provided with an audited income statement for such year and an audited balance sheet as of the ~~Line~~ end of ~~Credit~~such year. All statements are to be prepared in accordance with generally accepted principles of auditing and accounting applied on a basis consistent with the accounting practices of Borrower reflected in the audited financial statements for the preceding fiscal year, and year end statements are to be certified without material qualification by Price Waterhouse, by any other "big six" national accounting firm, or by any independent certified public accountants of recognized standing selected by Borrower and acceptable to Bank. Borrower shall also furnish to Bank all other financial statements reasonably requested by Bank. Borrower shall also furnish to Bank copies of (i) ~~annual federal income tax~~ all financial statements, reports and returns ~~of Borrower~~as it shall send to its stockholders, ~~together with all schedules and attachments thereto, and~~ (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Creditall regular, ~~(i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole~~ periodic, or ~~in part by Borrower~~ special reports (including but not limited to ~~the Property), (ii)~~ semi-annual ~~operating~~ reports on Form N-SAR and amendments to its registration statements on Form N-5) which it is or may be required to file with the ~~Property~~Securities & Exchange Commission or any governmental department, bureau, commission or agency succeeding to the functions of the Securities & Exchange Commission, and (iii) ~~an updated rent roll~~ all examination reports of its affairs which it shall receive from the ~~Property~~SBA; ~~and 6.1.3 Promptly~~ all of which documents shall be delivered to Bank forthwith as and ~~in form satisfactory to Bank~~when sent, ~~such other information regarding the operations~~ filed, or ~~financial condition of Borrower as~~ received by Borrower. Bank may ~~reasonably request from time~~ at any time, and without notice to ~~time~~or consent of Borrower, deliver to any participant in the Advances which are the subject of this Agreement, copies of all financial statements, reports, or any other documents delivered to Bank hereunder. ~~6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk~~B. Borrower shall keep proper books of record and accounts and, ~~hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to~~ upon application, give any representative of Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrenceaccess during normal business hours to, and ~~Bank shall be named as additional insured on~~ permit him or her to examine, any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and ~~assets of every kind and description of Borrower, at~~ documents in Borrower's ~~reasonable expense at all reasonable times~~possession relating to the financial affairs of Borrower and to inspect any of its properties. ~~6.5 Promptly notify~~ C. Together with each of the monthly financial statements and the year-end audited financial statements to be provided pursuant to section 7.A. above, Borrower shall also furnish to Bank a certificate signed by its President or Chief Financial Officer stating that he or she has no knowledge of any ~~condition~~ events of default which have occurred under this Agreement or ~~event~~ of any matters which ~~constitutes, or~~ would ~~constitute~~ with the passage of time ~~or giving~~ constitute an event of ~~notice or both, a~~ default ~~under this Agreement~~hereunder, or ~~the Loan and Security Documents~~ if he or ~~any other document or instrument issued in connection herewith, and promptly notify Bank~~ she shall have obtained knowledge of any ~~changes~~ such default or potential default he or she shall disclose in ~~its financial condition which, individually~~ such statement the default or ~~cumulatively, may result in a material adverse change in its financial condition~~potential default and the nature thereof. Each such certificate shall be dated as of the last day of the month or year for which it is submitted. ~~6.6 Maintain~~ D. Borrower shall maintain all insurable property, real and personal, owned by it insured at all times against loss or damage by fire or other normally insured hazards through a responsible insurance carrier selected by it in such amounts and to the extent of the coverage as is customary for companies engaged in similar businesses and in similar locations, but in no event shall said insurance be less than that which Bank, in good ~~standing~~ faith, believes is sufficient and adequate to protect the operating value of the property of Borrower. Borrower shall also carry insurance to cover its ~~corporate existence and its status~~ interest as ~~a foreign corporation qualified to do business~~ mortgagee in ~~those jurisdictions where it is required~~ the property securing the Third Party Loans to be ~~qualified~~effective in the event of any failure of the owner of such property to carry property insurance with respect thereto. The Collateral Agent (used herein as defined in the Intercreditor Agreement) shall be named as secured party loss payee in all such policies. Copies of all such insurance policies shall be delivered to Bank. ~~6.7 If it~~ E. Borrower shall ~~now or hereafter maintain an employee benefit plan subject~~ keep the properties that are material to the ~~Employee Retirement Income Security Act~~ operation of ~~1974 (hereinafter "ERISA")~~its business, ~~promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated;~~ whether owned or leased, in good condition, repair and ~~(ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA~~working order. ~~6.8 At any time~~ F. Borrower shall duly pay and ~~from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or~~ discharge all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all lawful taxes, assessments and governmental charges upon it or ~~relating~~ against its properties prior to ~~its income~~the date on which penalties are attached thereto, or unless and to the ~~operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges~~ extent only that the ~~Loan will~~ same shall be ~~placed~~ contested in good faith and by appropriate proceedings by the Borrower and provided Borrower has established appropriate reserves for the payment of said taxes in accordance with generally accepted accounting practices. G. Borrower shall do all things necessary to maintain its corporate existence, to preserve and keep in full force and effect its rights and franchises necessary to continue its businesses, and to comply with all applicable laws, regulations and ordinances (including without limitation any applicable state or federal securities laws) with respect to which the failure to comply would have a material adverse effect on ~~a tax monitoring system with the costs to be borne by~~ the Borrower. ~~6.10 Maintain the operating account ("Operating Account") for the Property with the~~ H. Borrower shall pay to Bank, upon demand, all reasonable charges and ~~retain~~ expenses incurred by Bank ~~as Borrower~~for attorney's ~~main bank~~ fees and expenses of ~~account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers~~ litigation, in seeking relief from the ~~Operating Account~~ automatic stay or any other bankruptcy proceedings, or in connection with or in any way related to ~~make any and all payments required~~ Bank's relationship with Borrower, with respect to ~~be made~~ the transactions contemplated by ~~Borrower~~ this Agreement, whether hereunder or otherwise, including without limitation those incurred or expended in connection with the ~~Line~~ preparation of this Agreement or any amendment hereto, extension of the Credit ~~including~~Facility hereunder, and the protection or enforcement of Bank's rights hereunder. In addition thereto, Borrower shall pay to Bank all reasonable charges and expenses incurred by Bank, of every kind or description, arising subsequent to the occurrence of any Event of Default, including but not limited toto reasonable attorneys fees and expenses of litigation. I. With respect to each of its Plans, ~~monthly payments of principal and interest~~ if any, under the ~~Line of Credit Note~~Employee Retirement Income Security Act ("ERISA") and the Internal Revenue Code (the "Code"), ~~late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related~~ Borrower represents and warrants that: 1. all funding requirements have been met and will continue to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be ~~tested~~ met on an annual ~~basis at~~ basis; 2. no "prohibited transactions" have occurred and that none of the ~~end~~ transactions which are the subject of ~~each fiscal year~~ this Agreement constitute prohibited transactions under the rulings or regulations of ERISA or the Code; 3. all such Plans are and will continue to be qualified Plans; and 4. the Borrower ~~beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable~~has complied with, and ~~failure~~ will continue to ~~satisfy~~ comply with, all reporting and disclosure requirements under ERISA, the ~~foregoing covenant shall not be deemed a default~~Code, and the applicable rulings and regulations with respect to ~~any fiscal year in~~ which ~~Borrower has not borrowed any Advance under~~ the ~~Line of Credit~~failure to so comply would have a material adverse effect on the Borrower. ~~6.12 Maintain~~ J. Borrower shall maintain its primary operating account at ~~all times a~~ Bank. K. Borrower ~~Debt Service Coverage Ratio of not less than l .20x to 1.0~~shall indemnify, ~~which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with~~ defend and ~~including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable~~hold Bank, and its officers, directors, employees, and agents, harmless from and against all claims, injury, damage, loss, costs (including attorneys' fees and costs) and liability of any and every kind to any persons or property by reason of (i) the breach of any representation or warranty herein or in any other Loan Document, (ii) the failure to ~~satisfy~~ fulfill any obligation under this Agreement or under any other Loan Document, or (iii) any other matter relating to, or action taken by Bank in connection with, the ~~foregoing covenant shall not be deemed a default~~Credit Facility, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined unless caused by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event gross negligence or willful misconduct of ~~Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the~~ Bank.

Appears in 1 contract

Sources: Loan Agreement (Bando McGlocklin Capital Corp)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees ~~that it will during the term hereof and~~ that, so long as any ~~Obligations remain outstanding: 6.1 Furnish or cause to be furnished to~~ portion of the ~~Bank the following, each of which~~ Revolver Commitment under this Agreement shall be in ~~form~~ effect and ~~substance satisfactory to the Bank~~until payment, ~~and shall be certified by the Borrower to be true~~in full, ~~correct and complete: 6.1.1 Within one hundred twenty (120) days after the end of each calendar during the term~~ of the ~~Line~~ Loans, with interest accrued and unpaid thereon, all other Obligations (including Obligations in respect of Letters of Credit, (iunless all such Letters of Credit are cancelled, expire or are cash collateralized in accordance with the provisions of Section 2.8(a) ~~annual federal income tax returns~~ hereof) and all other amounts due hereunder, and except as set forth in the Disclosure Statement with specific reference to the Section of ~~Borrower~~this Article V affected thereby concerning matters which do not conform to the covenants of this Article V, ~~together with all schedules and attachments thereto~~Borrower will do, and (iiexcept in the case of the covenants set forth in Sections 5.2(a), (b), (c), (d) ~~audited annual~~ and (e), which covenants shall be performed by the Borrower) will cause the other Loan Parties and their Restricted Subsidiaries (and, in the case of Sections 5.3, 5.4 and 5.5, each Designated Subsidiary) to do, each and all of the following: . Maintain adequate financial ~~statement of Borrower prepared by an independent certified public accountant~~ and accounting books and records in accordance with ~~GAAP; 6.1.2 Within one hundred twenty~~ sound business practices and, to the extent so required, GAAP consistently applied, and permit any representative of Agent (~~120) days~~ and after the ~~end~~ occurrence and during the continuance of an Event of Default, a representative of each ~~calendar year during the term of the Line of Credit, (i~~Lender) ~~cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited~~ upon reasonable notice to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at any time during usual business hours, to inspect, audit, and examine such books and records and to make copies and take extracts therefrom, and to discuss its affairs, financing, and accounts with Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, ’s or the ~~Loan~~ applicable Subsidiary’s officers and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021independent public accountants; provided, ~~however~~that Borrower shall only be obligated to reimburse Agent for the reasonable documented, ~~that~~ out-of-pocket expenses for one such inspection, audit or examination performed by such representative per calendar year absent the ~~foregoing covenant shall be inapplicable,~~ occurrence and ~~failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line~~ continuance of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of ~~Default has occurred or is confirmed by such appraisal~~Default. Subject to Section 9.11, Borrower ~~shall,~~ shall furnish Agent with any information reasonably requested by Agent regarding PTP’s or its Subsidiaries’ business or finances promptly upon ~~demand by Bank, immediately pay the cost of such appraisal to the Bank~~request.

Appears in 1 contract

Sources: Amendment No. 7 (Ares Management Lp)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that ~~it will during~~ from and after the ~~term hereof~~ date hereof, and so long as ~~any~~ the Obligations remain ~~outstanding~~unpaid or this Agreement remains in effect, as follows: ~~6.1 Furnish or cause~~ (a) Borrower shall deliver to ~~be furnished to the Bank the following~~Bank, ~~each of which shall be~~ in form and ~~substance~~ content satisfactory to ~~the~~ Bank, within ninety (90) days after the last day of each fiscal year of Borrower, annual financial statements of each corporate Borrower on a consolidated basis, including statements of income, expenses, retained earnings and cash flows for the just-ended fiscal year and a balance sheet as of the end of such fiscal year, such statements to be prepared and audited by a certified public accountant acceptable to Bank. (b) Borrower shall deliver to Bank, in form and content satisfactory to Bank, within thirty (30) days after the last day of each calendar month, interim financial statements of each corporate Borrower, including an income and expense statement and balance sheet, such statements to present fairly the financial condition and results of operations as of and for the periods specified, to set forth all material claims and liabilities, contingent or otherwise, and fully to disclose any Event of Default, including the nature and period of existence thereof, and such statements to be prepared and certified by the chief financial officer of the corporate Borrowers. (c) Borrower shall deliver to ~~be true~~Bank, ~~correct~~ in form and ~~complete: 6.1.1 Within~~ content satisfactory to Bank, within thirty (30) days after the last day of each calendar month, such data, information and reports of or concerning Borrower and each Obligor as Bank may reasonably request and the following additional documents and information: an aging of Borrower's accounts receivable and a Borrowing Base Certificate. Borrower shall deliver to Bank, in form and content satisfactory to Bank, within thirty (30) days after the last day of each fiscal quarter, a Compliance Certificate and a report from Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc. showing the status of the accounts of Borrower Denn▇▇ ▇. ▇▇▇▇▇ ▇▇▇ntained with Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc. and which comprise the Eligible Securities, including account balances and a description of all investments in the accounts. Additionally, Borrower shall deliver to Bank, in form and content satisfactory to Bank, within one hundred twenty (120) days after the ~~end~~ last day of each calendar ~~during the term~~ year, a personal financial statement on Denn▇▇ ▇. ▇▇▇▇▇. (d) Borrower shall keep adequate records and books of ~~the Line of Credit~~accounts, ~~(i) annual federal income tax returns of Borrower~~in which complete entries will be made, ~~together with~~ reflecting all ~~schedules and attachments thereto~~its financial transactions, and ~~(ii) audited annual financial statement of Borrower prepared by an independent certified public accountant~~ shall maintain its books, accounts and records, including, without limitation, all books and records evidencing or relating to Collateral, in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Credit, (i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, such other information regarding the operations or financial condition of Borrower as Bank may reasonably request from time to time. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrowergenerally accepted accounting principles, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under chief executive office as set forth in this Agreement, and shall not remove said books and records from such address without the prior written consent of Bank. (e) Borrower shall permit Bank or any persons duly designated by Bank to call at the ~~Loan~~ places of business of Borrower at any reasonable time, and ~~Security Documents~~ without hindrance or delay to visit, inspect, audit and check any of Borrower's properties, books, records, journals, orders, receipts and any correspondence or other data relating to Borrower's business or any other ~~document~~ transactions between or ~~instrument issued in connection herewith~~among the parties hereto, and ~~promptly notify Bank of any changes in its~~ to make copies thereof and take extracts therefrom, and to discuss Borrower's financial ~~condition which, individually or cumulatively, may result in a material adverse change in its~~ affairs with Borrower's financial ~~condition~~officers and accountants. ~~6.6 Maintain in good standing its corporate existence~~ (f) Borrower shall pay and ~~its status as a foreign corporation qualified to do business in those jurisdictions where it is required~~ discharge or cause to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; paid and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit discharged promptly ~~when due~~ all taxes, ~~assessments~~ assessments, fees, withholdings and other governmental charges or levies imposed upon ~~or relating to its income~~it, or ~~the operation~~ upon its income and profits, or upon any property belonging to it, as well as all claims of ~~its business~~ any kind (including claims for labor, materials and supplies), which, if unpaid, might by law become a lien or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021charge against said property; provided, however, that ~~the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant~~ Borrower shall not be required to pay any such tax, assessment, fee, withholding, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings, and if it shall have either: (i) set aside on its books reserves (segregated to the extent required by sound accounting practice) deemed ~~a default,~~ by Bank adequate with respect thereto, or (ii) established a deposit with Bank sufficient to ~~any fiscal year~~ pay or discharge such tax, assessment, fee, withholding, charge, levy or claim, if such proceedings are adversely determined. (g) Each corporate Borrower shall maintain its existence in good standing in the state of its organization or incorporation, maintain its qualification to conduct business and good standing in all jurisdictions where, under applicable law, the failure so to qualify could have a material adverse effect on Borrower's business or its ability to perform the Loan Documents, and conduct its business in the manner in which ~~Borrower has not borrowed any Advance under~~ it is now conducted subject only to changes made in the ~~Line~~ ordinary course of ~~Credit~~business. ~~6.12 Maintain at all times a~~ (h) Borrower ~~Debt Service Coverage Ratio~~ shall promptly, and in any event within five (5) business days after it becomes aware thereof, notify Bank in writing of ~~not less than l .20x~~ the occurrence of any material adverse change in its or any Obligor's business, properties, operations or conditions (financial or other) which could reasonably be expected to ~~1.0~~impair substantially its or such Obligor's ability to perform its or his obligations pursuant to this Agreement, ~~which ratio shall be tested on an annual basis at~~ or any of the ~~end~~ other Loan Documents, the occurrence of ~~each fiscal year~~ any Event of Default or the occurrence of any pending or threatened litigation claiming damages in excess of $10,000 or seeking relief that, if granted, would adversely affect the financial condition or business operations of Borrower ~~beginning with~~ or any Obligor. (i) Borrower shall pay or cause to be paid the principal of, and, if any, the interest and ~~including~~ premium on all indebtedness heretofore or hereafter incurred or assumed by it when and as the ~~fiscal year ending December 31~~same shall become due and payable, ~~2021~~unless such indebtedness be renewed or extended; and faithfully observe, perform and discharge all the covenants, conditions and obligations that are imposed upon it by any and all indentures and other agreements securing or evidencing such indebtedness or pursuant to which such indebtedness is issued, and not permit the continuance of any act or omission that is, or pursuant to the provisions thereof may be declared to be, a default in the payment of principal and interest, unless waived, pursuant to the provisions thereof; provided, however, that ~~the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant~~ Borrower shall not be required to make any payment or to take any other action pursuant to this subparagraph at any time while it shall be currently contesting in good faith by appropriate proceedings its obligations to make such a payment or to take such action, if it shall have either: (i) set aside on its books, reserves (segregated to the extent required by sound accounting practices) deemed adequate with respect thereto, or (ii) established a ~~default~~deposit with Bank sufficient to pay any such amount if such proceedings are adversely determined. (j) Borrower shall take all appropriate action necessary to protect its business and assets consistent with normal practices; conduct its business in a sound and businesslike manner; and do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and all of its rights. (k) Borrower shall pay or reimburse Bank for any out-of-pocket expenses, including, without limitation, attorneys' fees, incurred by Bank in preparing, negotiating, modifying or amending the Loan Documents. (l) Borrower shall fund all of its "plans" (if any) to which the minimum funding standards of Section 302 of ERISA apply in accordance with such standards; furnish Bank, promptly upon Bank's request, copies of all reports or other statements filed with, or received from, the United States Department of Labor, the Internal Revenue Service, or the Pension Benefit Guaranty Corporation with respect to all of Borrower's "plans"; and promptly advise Bank of the occurrence of any "reportable event" or "prohibited transaction" with respect to any ~~fiscal year~~ such "plan" (as all quoted terms are defined in ~~which Borrower has not borrowed any Advance under the Line of Credit~~ERISA). ~~6.13 Maintain at~~ (m) Borrower shall comply with all ~~times a ratio of the Line of Credit to the value of the Property~~ applicable present and future local, state and federal laws, including, without limitation, environmental laws and regulations; notify Bank immediately if any "hazardous substance" (as ~~determined~~ defined in CERCLA) is released, discharged, disposed of, stored, or discovered on any real or personal property owned or leased by ~~the most recent appraisal prepared~~ Borrower; notify Bank in writing within three (3) days after Borrower receives notice from any governmental authority or any individual or entity claiming violation of any environmental protection law or regulation, or demanding compliance with any environmental protection law or regulation, or demanding payment, indemnity, or contribution for any environmental damage or injury to natural resources; and ~~accepted by Bank), which shall not exceed sixty-five (65%) percent.~~ permit Bank ~~reserves the right to have the Property reappraised~~ from time to ~~time, which appraisal~~ time without hindrance or delay to observe Borrower's operations and to perform tests (including soil tests and ground water tests) for "hazardous substances" on any real or personal property owned or leased by Borrower. (n) Borrower shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event of Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the maintain its principal transaction account with Bank.

Appears in 1 contract

Sources: Commercial Loan Agreement (Professional Transporation Group LTD)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees ~~that it will during the term hereof and so long~~ as ~~any Obligations remain outstanding~~follows: ~~6.1 Furnish or cause~~ A. Borrower shall furnish Bank monthly financial statements (i.e., consolidated balance sheets and consolidated income statements) no later than thirty (30) days subsequent to ~~be furnished to~~ each month's end for such month. Together with the ~~Bank~~ monthly financial statements, Borrower shall provide a report identifying all the ~~following, each of~~ banks through which ~~shall be in form and substance satisfactory to~~ the ~~Bank~~Borrower is then issuing commercial paper, and ~~shall be certified by~~ the ~~Borrower to be true, correct and complete: 6.1.1~~ principal amount of commercial paper then outstanding issued through each bank. Within ~~one hundred twenty~~ ninety (~~120~~90) days after the end of each ~~calendar during the term~~ fiscal year of Borrower, Bank shall be provided with an audited income statement for such year and an audited balance sheet as of the ~~Line~~ end of ~~Credit~~such year. All statements are to be prepared in accordance with generally accepted principles of auditing and accounting applied on a basis consistent with the accounting practices of Borrower reflected in the audited financial statements for the preceding fiscal year, and year end statements are to be certified without material qualification by Price Waterhouse, by any other "big six" national accounting firm, or by any independent certified public accountants of recognized standing selected by Borrower and acceptable to Bank. Borrower shall also furnish to Bank all other financial statements reasonably requested by Bank. Borrower shall also furnish to Bank copies of (i) ~~annual federal income tax~~ all financial statements, reports and returns ~~of Borrower~~as it shall send to its stockholders, ~~together with all schedules and attachments thereto, and~~ (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (120) days after the end of each calendar year during the term of the Line of Creditall regular, ~~(i) cash flow schedules showing the financial condition of Borrower and all properties owned in whole~~ periodic, or ~~in part by Borrower~~ special reports (including but not limited to ~~the Property), (ii)~~ semi-annual ~~operating~~ reports on Form N-SAR and amendments to its registration statements on Form N-5) which it is or may be required to file with the ~~Property~~Securities & Exchange Commission or any governmental department, bureau, commission or agency succeeding to the functions of the Securities & Exchange Commission, and (iii) ~~an updated rent roll~~ all examination reports of its affairs which it shall receive from the ~~Property~~SBA; ~~and 6.1.3 Promptly~~ all of which documents shall be delivered to Bank forthwith as and ~~in form satisfactory to Bank~~when sent, ~~such other information regarding the operations~~ filed, or ~~financial condition of Borrower as~~ received by Borrower. Bank may ~~reasonably request from time~~ at any time, and without notice to ~~time~~or consent of Borrower, deliver to any participant in the loans which are the subject of this Agreement, copies of all financial statements, reports, or any other documents delivered to Bank hereunder. ~~6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk~~B. Borrower shall keep proper books of record and accounts and, ~~hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to~~ upon application, give any representative of Bank and Borrower (it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof). 6.3 Maintain general liability insurance coverage of such types and in such amounts as shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrenceaccess during normal business hours to, and ~~Bank shall be named as additional insured on~~ permit him or her to examine, any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and ~~assets of every kind and description of Borrower, at~~ documents in Borrower's ~~reasonable expense at all reasonable times~~possession relating to the financial affairs of Borrower and to inspect any of its properties. ~~6.5 Promptly notify~~ C. Together with each of the monthly financial statements and the year-end audited financial statements to be provided pursuant to section 6.A. above, Borrower shall also furnish to Bank a certificate signed by its President or Chief Financial Officer stating that he or she has no knowledge of any ~~condition~~ events of default which have occurred under this Agreement or ~~event~~ of any matters which ~~constitutes, or~~ would ~~constitute~~ with the passage of time ~~or giving~~ constitute an event of ~~notice or both, a~~ default ~~under this Agreement~~hereunder, or ~~the Loan and Security Documents~~ if he or ~~any other document or instrument issued in connection herewith, and promptly notify Bank~~ she shall have obtained knowledge of any ~~changes~~ such default or potential default he or she shall disclose in ~~its financial condition which, individually~~ such statement the default or ~~cumulatively, may result in a material adverse change in its financial condition~~potential default and the nature thereof. Each such certificate shall be dated as of the last day of the month or year for which it is submitted. ~~6.6 Maintain~~ D. Borrower shall maintain all insurable property, real and personal, owned by it insured at all times against loss or damage by fire or other normally insured hazards through a responsible insurance carrier selected by it in such amounts and to the extent of the coverage as is customary for companies engaged in similar businesses and in similar locations, but in no event shall said insurance be less than that which Bank, in good ~~standing~~ faith, believes is sufficient and adequate to protect the operating value of the property of Borrower. Borrower shall also carry insurance to cover its ~~corporate existence and its status~~ interest as ~~a foreign corporation qualified to do business~~ mortgagee in ~~those jurisdictions where it is required~~ the property securing the Third Party Loans to be ~~qualified~~effective in the event of any failure of the owner of such property to carry property insurance with respect thereto. The Collateral Agent (used herein as defined in the Intercreditor Agreement) shall be named as secured party loss payee in all such policies. Copies of all such insurance policies shall be delivered to Bank. ~~6.7 If it~~ E. Borrower shall ~~now or hereafter maintain an employee benefit plan subject~~ keep the properties that are material to the ~~Employee Retirement Income Security Act~~ operation of ~~1974 (hereinafter "ERISA")~~its business, ~~promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated;~~ whether owned or leased, in good condition, repair and ~~(ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA~~working order. ~~6.8 At any time~~ F. Borrower shall duly pay and ~~from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or~~ discharge all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all lawful taxes, assessments and governmental charges upon it or ~~relating~~ against its properties prior to ~~its income~~the date on which penalties are attached thereto, or unless and to the ~~operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges~~ extent only that the ~~Loan will~~ same shall be ~~placed~~ contested in good faith and by appropriate proceedings by the Borrower and provided Borrower has established appropriate reserves for the payment of said taxes in accordance with generally accepted accounting practices. G. Borrower shall do all things necessary to maintain its corporate existence, to preserve and keep in full force and effect its rights and franchises necessary to continue its businesses, and to comply with all applicable laws, regulations and ordinances (including without limitation any applicable state or federal securities laws) with respect to which the failure to comply would have a material adverse effect on ~~a tax monitoring system with the costs to be borne by~~ the Borrower. ~~6.10 Maintain the operating account ("Operating Account") for the Property with the~~ H. Borrower shall pay to Bank, upon demand, all reasonable charges and ~~retain~~ expenses incurred by Bank ~~as Borrower~~for attorney's ~~main bank~~ fees and expenses of ~~account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers~~ litigation, in seeking relief from the ~~Operating Account~~ automatic stay or any other bankruptcy proceedings, or in connection with or in any way related to ~~make any and all payments required~~ Bank's relationship with Borrower, with respect to ~~be made~~ the transactions contemplated by ~~Borrower~~ this Agreement, whether hereunder or otherwise, including without limitation those incurred or expended in connection with the ~~Line~~ preparation of this Agreement or any amendment hereto, extension of the Credit ~~including~~Facility hereunder, and the protection or enforcement of Bank's rights hereunder. In addition thereto, Borrower shall pay to Bank all reasonable charges and expenses incurred by Bank, of every kind or description, arising subsequent to the occurrence of any event of default, including but not limited toto reasonable attorneys fees and expenses of litigation. I. With respect to each of its Plans, ~~monthly payments of principal and interest~~ if any, under the ~~Line of Credit Note~~Employee Retirement Income Security Act ("ERISA") and the Internal Revenue Code (the "Code"), ~~late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related~~ Borrower represents and warrants that: 1. all funding requirements have been met and will continue to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be ~~tested~~ met on an annual ~~basis at~~ basis; 2. no "prohibited transactions" have occurred and that none of the ~~end~~ transactions which are the subject of ~~each fiscal year~~ this Agreement constitute prohibited transactions under the rulings or regulations of ERISA or the Code; 3. all such Plans are and will continue to be qualified Plans; and 4. the Borrower ~~beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable~~has complied with, and ~~failure~~ will continue to ~~satisfy~~ comply with, all reporting and disclosure requirements under ERISA, the ~~foregoing covenant shall not be deemed a default~~Code, and the applicable rulings and regulations with respect to ~~any fiscal year in~~ which ~~Borrower has not borrowed any Advance under~~ the ~~Line of Credit~~failure to so comply would have a material adverse effect on the Borrower. ~~6.12 Maintain at all times a~~ J. Borrower ~~Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio~~ shall ~~be tested on an annual basis~~ maintain its primary operating account at the ~~end of each fiscal year of~~ Bank or with an Additional Lender. K. Borrower ~~beginning with~~ shall indemnify, defend and ~~including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable~~hold Bank, and ~~failure to satisfy the foregoing covenant shall not be deemed a default~~its officers, ~~with respect~~ directors, employees, and agents, harmless from and against all claims, injury, damage, loss, costs (including attorneys' fees and costs) and liability of any and every kind to any ~~fiscal year~~ persons or property by reason of (i) the breach by Borrower of any representation or warranty herein or in ~~which~~ any other Loan Document, (ii) the failure by Borrower ~~has not borrowed~~ to fulfill any ~~Advance~~ obligation under this Agreement or under any other Loan Document, or (iii) any other matter relating to, or action taken by Bank in connection with, the ~~Line of Credit. 6.13 Maintain at all times a ratio of the Line of~~ Credit ~~to the value of the Property (as determined~~ Facility, unless caused by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank and shall be at Bank's sole cost and expense, except as provided in the following sentence. If an Event gross negligence or willful misconduct of ~~Default has occurred or is confirmed by such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the~~ Bank.

Appears in 1 contract

Sources: Loan Agreement (Bando McGlocklin Capital Corp)

AFFIRMATIVE COVENANTS OF BORROWER. Borrower covenants and agrees that ~~it will during~~ from the ~~term~~ date hereof and ~~so long as any Obligations remain outstanding~~until payment in full of the principal and interest on the indebtedness evidenced by the Note and other documents, unless the Lender shall otherwise consent in writing, such consent to be at the discretion of the Lender, Borrower will: ~~6.1 Furnish~~ (a) Keep the Land and other Collateral free and clear of all encumbrances, liens, mortgages, security interests and secondary financing, except for matters approved in writing by the Lender, and the Borrower shall not, without the prior written consent of the Lender, sell, transfer or convey all or any part of his interest in the Land or any portion thereof. (b) Not lease any portion of the Land to any person or entity. (c) Notify Lender immediately of any change of address of the Borrower. (d) Pay all of his indebtedness and obligations promptly in accordance with normal terms and practices and pay and discharge or cause to be ~~furnished to the Bank the following~~paid and discharged promptly all taxes, ~~each of which shall be in form and substance satisfactory to the Bank~~assessments, and governmental charges or levies imposed upon him, the Land or any of the other Collateral, before the same shall ~~be certified~~ become in default, as well as all lawful claims for labor, materials, and supplies which otherwise, if unpaid might become a lien or charge upon such Land or other Collateral or any part thereof, unless such amounts are being properly protested by the ~~Borrower to be true, correct and complete:~~Borrower. ~~6.1.1 Within one hundred twenty~~ (~~120~~e) Provide Lender with quarterly 10Q reports within ten (10) days ~~after the end~~ of ~~each calendar during the term~~ their filing, as well as copies of ~~the Line of Credit,~~ annual audited financial statements within ten (i) annual federal income tax returns of Borrower, together with all schedules and attachments thereto, and (ii) audited annual financial statement of Borrower prepared by an independent certified public accountant in accordance with GAAP; 6.1.2 Within one hundred twenty (12010) days ~~after the end~~ of ~~each calendar year during the term of the Line of Credit,~~ their preparation. (if) cash flow schedules showing the financial condition of Borrower and all properties owned in whole or in part by Borrower (including but not limited to the Property), (ii) annual operating statements on the Property, and (iii) an updated rent roll of the Property; and 6.1.3 Promptly and in form satisfactory to Bank, Furnish such other information regarding the ~~operations or~~ operation, business affairs, and financial condition of ~~Borrower~~ the Borrower, as ~~Bank~~ the Lender may reasonably ~~request from time to time~~request. 6.2 Enforce the Property Ground Lease to cause Tenant to maintain at all times risk, hazard and fire insurance for the Property from an insurance company and in a form reasonably acceptable to Bank and Borrower (~~it being acknowledged and agreed that the coverage and amount of Tenant's insurance policies furnished to Bank as of the date hereof are satisfactory for the purposes hereof)~~g) Maintain its operating accounts with Lender. ~~6.3~~ (h) Maintain ~~general liability insurance coverage~~ a debt service ratio of ~~such types and in such amounts as~~ at least 2:0 to 1:0. (This convenant shall be satisfactory to Bank in its sole discretion, but in any event no less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence, and Bank shall be named as additional insured on any and all policies evidencing such insurance coverage and providing not less than thirty (30) days-notice of cancellation to Bank. 6.4 Permit Bank, through its authorized representatives, to perform commercial finance examinations and/or appraisals of Borrower's business and assets and to examine the books, records and assets of every kind and description of Borrower, at Borrower's reasonable expense at all reasonable times. 6.5 Promptly notify Bank of any condition or event which constitutes, or would constitute with the passage of time or giving of notice or both, a default under this Agreement, or the Loan and Security Documents or any other document or instrument issued in connection herewith, and promptly notify Bank of any changes in its financial condition which, individually or cumulatively, may result in a material adverse change in its financial condition. 6.6 Maintain in good standing its corporate existence and its status as a foreign corporation qualified to do business in those jurisdictions where it is required to be qualified. 6.7 If it shall now or hereafter maintain an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), promptly: (i) notify Bank of the filing of a notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be terminated; and (ii) notify Bank of the notice or institution of any proceedings by the PBGC under ERISA. 6.8 At any time and from time to time upon request of Bank, execute and deliver to Bank in form and substance satisfactory to Bank, negotiable promissory notes for any or all of the Obligations and/or such other documents in respect of the Obligations as Bank shall request to evidence or perfect the Obligations or Bank's security interest in its collateral for the Obligations, or any documents in respect of the Obligations which may be necessary to comply with the law of the State of Rhode Island or the law of any other states in which Borrower may be conducting business or to which Borrower may be subject. 6.9 Pay or deposit promptly when due all taxes, assessments and governmental charges upon or relating to its income, or the operation of its business or otherwise, for which it is liable and upon request submit to Bank proof satisfactory to Bank that such payments and deposits have been made. Borrower acknowledges that the Loan will be placed on a tax monitoring system with the costs to be borne by the Borrower. 6.10 Maintain the operating account ("Operating Account") for the Property with the Bank, and retain Bank as Borrower's main bank of account and deposit. Borrower hereby authorizes and directs Bank to debit the Operating Account and make automatic transfers from the Operating Account to make any and all payments required to be made by Borrower in connection with the Line of Credit including, but not limited to, monthly payments of principal and interest under the Line of Credit Note, late fees, service charges or other fees or expenses as may become due under any one or more of the documents, instruments or agreements now or hereafter executed in connection with or related to the Line of Credit. It is further anticipated that Borrower will review with Bank its ability to manage Borrower's cash investments. 6.11 Maintain at all times a Property Debt Service Coverage Ratio of not less than 1.25x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.12 Maintain at all times a Borrower Debt Service Coverage Ratio of not less than l .20x to 1.0, which ratio shall be tested on an annual basis at the end of each fiscal year of Borrower beginning with and including the fiscal year ending December 31, 2021; provided, however, that the foregoing covenant shall be inapplicable, and failure to satisfy the foregoing covenant shall not be deemed a default, with respect to any fiscal year in which Borrower has not borrowed any Advance under the Line of Credit. 6.13 Maintain at all times a ratio of the Line of Credit to the value of the Property (as determined by the most recent appraisal prepared for and accepted by Bank), which shall not exceed sixty-five (65%) percent. Bank reserves the right to have the Property reappraised from time to time, which appraisal shall be in form and substance satisfactory to Bank measured quarterly and shall be ~~at Bank's sole cost~~ calculated as net income, plus depreciation and ~~expense~~interest, ~~except as provided in the following sentence. If an Event of Default has occurred or is confirmed~~ divided by ~~such appraisal, Borrower shall, upon demand by Bank, immediately pay the cost of such appraisal to the Bank~~total banks and leasing debt service requirements.)

Appears in 1 contract

Sources: Loan Agreement (Back Yard Burgers Inc)

Common use of AFFIRMATIVE COVENANTS OF BORROWER Clause in Contracts