BORROWER'S ADDITIONAL COVENANTS. Borrower hereby agrees and covenants as follows: (i) except for the security interest granted hereby, Borrower shall keep the Equipment free and clear of any security interest, lien or encumbrance and shall not sell, lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any of the Equipment, (ii) at the request of the Lender, Borrower shall execute one or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the prior written consent of Lender; (vi) Borrower will allow Lender and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and (vii) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all other financial information and reports that Lender may from time to time reasonably request, including income tax returns of Borrower and any guarantor of Borrower's obligations hereunder.
Appears in 3 contracts
Sources: Loan and Security Agreement (Skyline Multimedia Entertainment Inc), Loan and Security Agreement (Skyline Multimedia Entertainment Inc), Loan and Security Agreement (Skyline Multimedia Entertainment Inc)
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and covenants as followsundertakes to:
(a) from time to time, at the reasonable request of Lender, (i) except for promptly correct any defect, error or omission which may be discovered in the contents of this Agreement, the instrument or any of the other Loan Documents or any of the other Instruments or in the execution or acknowledgment thereof; (ii) execute, acknowledge, deliver and record and/or file such further documents or instruments (including, without limitation, further mortgages, security agreements, financing statements, continuation statements, assignments of rents or leases and environmental indemnity agreements) and perform such further acts and provide such further assurances as may be necessary, desirable or proper, in Lender’s reasonable opinion, to carry out more effectively the purposes of this Agreement and such other instruments and to subject to the Liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Property; and (iii) execute, acknowledge, deliver, procure, and file and/or record any document or instrument (including specifically, but without limitation, any financing statement) deemed advisable by Lender to protect the Liens and the security interest interests herein granted against the rights or interests of third persons; provided that such documents or instruments do not increase Borrower’s liability under the Loan Documents. Borrower will pay all reasonable costs connected with any of the foregoing in this subparagraph (a);
(b) continuously maintain Borrower’s existence, if applicable, as a Borrower Entity, and the right to do business, as applicable, in the State’ of Maryland and in the State of Delaware;
(c) at any time any law shall be enacted imposing or authorizing the imposition of any tax upon the Instrument or any of the other Loan Documents, or upon any rights, title, Liens or security interests created hereby, or upon the obligations secured hereby or any part thereof, pay all such taxes within the applicable payment period; provided that, if such law as enacted makes it unlawful for Borrower to pay such tax, Borrower shall keep not pay nor be obligated to pay such tax, and in the Equipment free alternative, Borrower may, in the event of the enactment of such a law, and clear of any security interestmust, lien if it is unlawful for Borrower to pay such taxes, prepay the obligations secured hereby in full within one hundred twenty (120) days after demand therefor by Lender, without penalty or encumbrance premium;
(d) promptly pay all reasonable and shall bona fide out-of-pocket costs, fees and expenses and other expenditures, including, but not selllimited to, leasereasonable attorneys’ fees and expenses, assign (paid or incurred by operation of law Lender to third parties incident to this Agreement, the Instrument or otherwise), exchange or otherwise dispose of any of the Equipmentother Loan Documents (including, (iibut not limited to, reasonable attorneys’ fees and expenses in connection with the negotiation, preparation and execution hereof and of any other Loan Document and any amendment hereto or thereto, any release hereof, any consent, approval or waiver hereunder or under any other Loan Document, the making of any advance under the Note, and any suit to which Lender is a party involving this Agreement or the Property including any such fees incurred on appeal of such suit) at or incident to the request enforcement of the Lender, Borrower shall execute one obligations secured hereby or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing exercise of any change in its place(sright or remedy of the Lender under any Loan Document;
(e) not materially amend the constituent entity organizational documents of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral Borrower without the prior written consent of Lender; , which consent shall not be unreasonably delayed or withheld;
(vif) Borrower will allow at its sole cost and expense, furnish Lender and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and (vii) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish with such title endorsements or updates to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all other financial information and reports that ’s title insurance policy as Lender may reasonably require, from time to time reasonably requesttime, to insure Lender that no other matters of record affect the condition of title or the priority of Lender’s Lien;
(g) not amend, modify or terminate the management agreement, if any, relating to the management of the Property or the Restaurant without the Lender’s prior written consent, and Borrower shall strictly enforce all the material terns of any such management agreement. (The existence and identity of any manager of the Property and/or the restaurant, as well as the terms and conditions of any management agreement relating thereto, shall be subject to Lender’s prior written approval);
(h) not own an interest in, or operate, any other WENDY’S restaurant within a three (3) mile radius of the Property (excluding the WENDY’S restaurant operated on the Property);
(i) without limiting any other obligation of the Borrower hereunder, shall and does hereby indemnify, hold harmless and insure the Lender of and from any and all claim, liability, loss or damage whatsoever, including income tax returns without limitation in-house and outside counsel attorneys’ and paralegals’ fees and costs, arising from or in any way relating to the Property this Agreement, the Instrument or any of the other the Loan Documents, save only and except for any claim or loss caused directly as a result of gross negligence or intentional breach or misconduct by Lender;
(j) promptly, and in any event within three (3) business days after an officer of the Borrower and obtains actual knowledge of any guarantor failure or breach or violation or a Default under this Agreement, to provide Lender with written notice thereof. “Actual knowledge” as used in this clause (j) of paragraph 25 means the actual knowledge of an officer of Borrower's ;
(k) not provide a guaranty of the obligations of any of its affiliates or a third party which if exercised would result in a Default (or which but for the passage of time would be a Default hereunder) with respect to the requirements set for cash flow in paragraph 26 hereof; and
(l) keep the covenants set forth in paragraph 26 of the Instrument.
Appears in 2 contracts
Sources: Loan Agreement (Friendco Restaurants Inc), Loan Agreement (Davco Acquisition Holding Inc)
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and covenants as followsundertakes to:
(ia) except for the security interest granted hereby, Borrower shall keep the Equipment free fulfill and clear perform all of Borrower’s obligations as landlord or lessor under any lease; will promptly send Lender copies of any security interestnotices of default received from the tenant under any lease; and will enforce (short of terminating such lease) the performance by the tenant of the tenant’s obligations under any lease;
(b) not make, lien enter into, execute, cancel, amend or encumbrance and shall modify any lease without the prior written consent of Lender (other than an Exempt Lease);
(c) not sell, approve any assignment of a lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any sublease or underlease, without the prior written consent of the EquipmentLender (other than an Exempt Lease);
(d) not cancel or modify any guaranty of a lease, (ii) at the request or release any security deposit or letter of the Lendercredit constituting security under a lease, Borrower shall execute one or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the prior written consent of Lender;
(e) not accept prepayment of any installment of rent from any tenants of the Property for a period of more than one (1) month in advance;
(f) not further assign the whole (or any part of) the leases or the rents;
(g) not undertake or commence any alterations of any improvements on the Property the cost of which is in excess of five percent (5%) of the then original principal amount of the Note, without the prior written consent of Lender;
(h) from time to time, at the request of Lender, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Instrument or in any other Loan Document or in the execution or acknowledgement thereof; (viii) execute, acknowledge, deliver and record and/or file such further documents or instruments (including, without limitation, further mortgages, security agreements, financing statements, continuation statements, assignments of rents or leases and environmental indemnity agreements) and perform such further acts and provide such further assurances as may be necessary, desirable or proper, in Lender’s opinion, to carry out more effectively the purposes of this Instrument and such other instruments and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Property; provided that such documents or instruments do not materially increase Borrower’s liability under the Loan Documents; and (iii) execute, acknowledge, deliver, procure, and file and/or record any document or instrument (including specifically, but without limitation, any financing statement) deemed advisable by Lender to protect the liens and the security interests herein granted against the rights or interests of third persons; provided that such documents or instruments do not materially increase Borrower’s liability under the Loan Documents. Borrower will allow Lender pay all reasonable costs connected with any of the foregoing in this subparagraph (h);
(i) continuously maintain Borrower’s existence and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate do business in the State of Virginia;
(j) at any time any law shall be enacted imposing or authorizing the imposition of any tax upon this Instrument, or upon any rights, titles, liens or security interests created hereby, or upon the obligations secured hereby or any part thereof, immediately pay all such taxes; provided that, if such law as enacted makes it unlawful for Borrower to pay such tax, Borrower shall not pay nor be obligated to pay such tax, and show in the Collateral alternative, Borrower may, in the event of the enactment of such a law, and must, if it is unlawful for Borrower to others and pay such taxes, prepay the obligations secured hereby in full within sixty (vii) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (3060) days after demand therefor by Lender;
(k) not execute or deliver any deed of trust, mortgage or pledge of any type covering all or any portion of the end Property;
(l) not acquire any real property or assets (other than the Property) or operate any business other than the management and operation of the Property during the term of the Loan;
(m) not permit any drilling or exploration for or extraction, removal or production of any mineral, natural element, compound or substance from the surface of subsurface of the Property regardless of the depth thereof or the method of mining or extraction thereof;
(n) not change its first three quarters name, identity, structure or employer identification number during the term of the Loan;
(o) pay on demand all reasonable and bona fide out-of-pocket costs, fees and expenses and other expenditures, including, but not limited to, reasonable attorneys’ fees and expenses, paid or incurred by Lender to third parties incident to this Instrument or any other Loan Document (including, but not limited to, reasonable attorneys’ fees and expenses in each fiscal yearconnection with the negotiation, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close preparation and execution hereof and of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all any other financial information and reports that Lender may from time to time reasonably request, including income tax returns of Borrower Loan Document and any guarantor amendment hereto or thereto, any release hereof, any consent, approval or waiver hereunder or under any other Loan Document, the making of Borrower's any advance under the Note, and any suit to which Lender is a party involving this Instrument or the Property) or incident to the enforcement of the obligations hereundersecured hereby or the exercise of any right or remedy of Lender under any Loan Document; and
(p) maintain and keep the Property in compliance with all Applicable Laws.
Appears in 1 contract
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby agrees and covenants as follows:
: (i) except for the security interest granted hereby, Borrower shall keep the Equipment free and clear of any security interest, lien or encumbrance and shall not sell, lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any of the Equipment, (ii) at the request of the Lender, Borrower shall execute one or more Financing Statements authorizes Lender to file a financing statement and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in amendments thereto describing the Collateral, in form satisfactory to Lenderwhich may be filed either before or after Borrower’s execution of any related Schedule, and will Borrower agrees to pay any filing fees and/or costs with respect thereto and for lien searchessearches and articles of incorporation; (iii) Borrower authorizes Lender to file one or more Financing Statements covering if any part of the Collateral without Borrower's signature theretois subject to certificate of title law, Borrower will cause Lender’s security interest to be noted on such certificate of title and promptly deliver such certificate to Lender; (iv) Borrower agrees that it will immediately notify Lender in writing of any not change in the State where it was incorporated or otherwise, nor change its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as address, without providing Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the with thirty (30) days prior written consent of Lendernotice; (viv) Borrower will allow Lender and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender Lender shall have the right to demonstrate and show the Collateral to others and (viivi) Borrower will furnish or cause to be furnished to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly interim Financial Statements to include both a balance sheet and income statement within thirty sixty (3060) days after the end of its first three quarters in each fiscal year, (b) its certified review quality Financial Statement Statements prepared by an independent certified public accountant within ninety one hundred twenty (90120) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles principles, (c) the financial statements or other financial information which any guarantor of Borrower's obligations hereunder (“Guarantor”) is required to provide to Lender as set forth in the applicable guaranty, and (cd) all other financial information and reports that Lender may from time to time reasonably request, including income tax returns of Borrower and any guarantor Guarantor; (vii) Borrower and any Guarantor agrees that any financial statements or other nonpublic information which Borrower or any Guarantor provides to Lender may be disclosed by Lender for legitimate business purposes to Lender’s affiliates, attorneys, advisors, recourse providers, prospective assignees or participants, auditors or other parties pursuant to law, and (viii) Borrower will comply with all applicable federal, state and local laws, rules, ordinances, regulations and orders applicable to it and Borrower will execute and deliver to Lender such further documents and take such further action as Lender may require in order to more effectively carry out the intent and purpose of Borrower's obligations hereunderthis Agreement.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Document Security Systems Inc)
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby agrees and covenants as follows:
: (i) except for the security interest granted herebyhereby and other Permitted Liens, Borrower shall keep the Equipment free and clear of any security interest, lien or encumbrance and shall not sell, lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any of the Equipment, (ii) at the request of the Lender, Borrower shall execute one or more Financing Statements authorizes Lender to file a financing statement and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in amendments thereto describing the Collateral, in form satisfactory to Lenderwhich may be filed either before or after Borrower's execution of any related Schedule, and will Borrower agrees to pay any filing fees and/or costs with respect thereto and for lien searchessearches and articles of incorporation; (iii) Borrower authorizes Lender to file one or more Financing Statements covering if any part of the Collateral without Borroweris subject to certificate of title law then upon Lender's signature theretorequest, Borrower will cause Lender's security interest to be noted on such certificate of title and promptly deliver such certificate to Lender; (iv) Borrower agrees that it will immediately notify Lender in writing of any not change in the State where it was incorporated or otherwise, nor change its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as address, without providing Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the with thirty (30) days prior written consent of Lendernotice; (viv) Borrower will allow Lender and its representatives free access to the Collateral at all times (upon prior written notice) during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender Lender shall have the right to demonstrate and show the Collateral to others and (viivi) Borrower will furnish or cause to be furnished to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Guarantor's consolidated interim Financial Statements to include both a balance sheet and income statement within thirty sixty (3060) days after the end of its first three quarters in each fiscal year, (b) its certified Guarantor's consolidated audited Financial Statement Statements prepared by an independent certified public accountant within ninety one hundred twenty (90120) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles principles, (c) the financial statements or other financial information which any guarantor of Borrower's obligations hereunder ("Guarantor") is required to provide to Lender as set forth in the applicable guaranty, and (cd) all other financial information and reports that Lender may from time to time reasonably request, including income tax returns of Borrower and any guarantor Guarantor; (vii) Borrower and any Guarantor agrees that any financial statements or other nonpublic information which Borrower or any Guarantor provides to Lender may be disclosed by Lender for legitimate business purposes to Lender's affiliates, attorneys, advisors, recourse providers, prospective Equipment remarketers, assignees or participants, auditors or other parties pursuant to law, and (viii) Borrower will comply with all applicable federal, state and local laws, rules, ordinances, regulations and orders applicable to it and Borrower will execute and deliver to Lender such further documents and take such further action as Lender may reasonably require in order to more effectively carry out the intent and purpose of Borrower's obligations hereunderthis Agreement.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Techprecision Corp)
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and covenants as followsundertakes to:
(ia) except for the security interest granted hereby, Borrower shall keep the Equipment free fulfill and clear perform all of Borrower's obligations as landlord or lessor under any lease; will promptly send Lender copies of any security interestnotices of default received from the tenant under any lease; and will enforce (short of terminating such lease) the performance by the tenant of the tenant's obligations under any lease;
(b) not make, lien enter into, execute, cancel, amend or encumbrance and shall modify any lease without the prior written consent of Lender (other than an Exempt Lease);
(c) not sell, approve any assignment of a lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any sublease or underlease, without the prior written consent of the EquipmentLender (other than an Exempt Lease);
(d) not cancel or modify any guaranty of a lease, (ii) at the request or release any security deposit or letter of the Lendercredit constituting security under a lease, Borrower shall execute one or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the prior written consent of Lender; ;
(vie) Borrower will allow Lender and its representatives free access to not accept prepayment of any installment of rent from any tenants of the Collateral at all times during normal business hoursProperty for a period of more than one (1) month in advance;
(f) not further assign the whole (or any part of) the leases or the rents;
(g) not undertake or commence any alterations of any improvements on the Property the cost of which is in excess of five percent (5%) of the then original principal amount of the Note, for purposes without the prior written consent of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and Lender;
(viih) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all other financial information and reports that Lender may from time to time reasonably requesttime, at the request of Lender, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Instrument or in any other Loan Document or in the execution or acknowledgement thereof; (ii) execute, acknowledge, deliver and record and/or file such further documents or instruments (including, without limitation, further mortgages, security agreements, financing statements, continuation statements, assignments of rents or leases and environmental indemnity agreements) and perform such further acts and provide such further assurances as may be necessary, desirable or proper, in Lender's opinion, to carry out more effectively the purposes of this Instrument and such other instruments and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including income tax returns of Borrower and specifically, but without limitation, any guarantor of renewals, additions, substitutions, replacements, or appurtenances to the Property; provided that such documents or instruments do not materially increase Borrower's obligations hereunder.liability under the Loan Documents; and (iii) execute, acknowledge, deliver, procure, and file and/or record any document or instrument (including specifically, but without limitation, any financing statement) deemed advisable by Lender to protect the liens and the security interests herein granted against the rights or interests of third persons; provided that such documents or instruments do not materially increase Borrower's liability under the Loan Documents. Borrower will pay all reasonable costs connected with any of the foregoing in this subparagraph (h);
Appears in 1 contract
Sources: Mortgage, Assignment of Rents and Security Agreement (Microware Systems Corp)
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby agrees and covenants as follows:
(i) except for the security interest granted hereby, Borrower shall keep the Equipment free and clear of any security interest, lien or encumbrance and shall not sell, lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any of the Equipment, (ii) at the request of the Lender, Borrower shall execute Lender in execution of one or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the prior written consent of Lender; (vi) Borrower will allow Lender and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and (vii) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all other financial information and reports that Lender may from time to time reasonably request, including income tax returns of Borrower and any guarantor of Borrower's obligations hereunder.
Appears in 1 contract
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and covenants as followsundertakes to:
(ia) except for the security interest granted hereby, Borrower shall keep the Equipment free fulfill and clear perform all of Borrower's obligations as landlord or lessor under any lease; will promptly send Lender copies of any security interestnotices of default received from the tenant under any lease; and will enforce (short of terminating such lease) the performance by the tenant of the tenant's obligations under any lease;
(b) not make, lien enter into, execute, cancel, amend or encumbrance and shall modify any lease without the prior written consent of Lender (other than an Exempt Lease);
(c) not sell, approve any assignment of a lease, assign (by operation of law or otherwise), exchange or otherwise dispose of any sublease or underlease, without the prior written consent of the EquipmentLender (other than an Exempt Lease);
(d) not cancel or modify any guaranty of a lease, (ii) at the request or release any security deposit or letter of the Lendercredit constituting security under a lease, Borrower shall execute one or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the prior written consent of Lender; ;
(vie) Borrower will allow Lender and its representatives free access to not accept prepayment of any installment of rent from any tenants of the Collateral at all times during normal business hoursProperty for a period of more than one (1) month in advance;
(f) not further assign the whole (or any part of) the leases or the rents;
(g) not undertake or commence any alterations of any improvements on the Property the cost of which is in excess of five percent (5%) of the then original principal amount of the Note, for purposes without the prior written consent of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and Lender;
(viih) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all other financial information and reports that Lender may from time to time reasonably requesttime, at the request of Lender, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Instrument or in any other Loan Document or in the execution or acknowledgment thereof; (ii) execute, acknowledge, deliver and record and/or file such further documents or instruments (including, without limitation, further mortgages, security agreements, financing statements, continuation statements, assignments of rents or leases and environmental indemnity agreements) and perform such further acts and provide such further assurances as may be necessary, desirable or proper, in Lender's opinion, to carry out more effectively the purposes of this Instrument and such other instruments and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including income tax returns of Borrower and specifically, but without limitation, any guarantor of renewals, additions, substitutions, replacements, or appurtenances to the Property; provided that such documents or instruments do not materially increase Borrower's obligations hereunder.liability under the Loan Documents; and (iii) execute, acknowledge, deliver, procure, and file and/or record any document or instrument (including specifically, but without limitation, any financial statement) deemed advisable by Lender to protect the liens and the security interests herein granted against the rights or interests of third persons; provided that such documents or instruments do not materially increase Borrower's liability under the Loan Documents. Borrower will pay all reasonable costs connected with any of the foregoing in this subparagraph (h);
Appears in 1 contract
BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and covenants as followsundertakes to:
(ia) except for the security interest granted hereby, Borrower shall keep the Equipment free fulfill and clear perform all of Borrower's obligations as landlord or lessor under any lease; will promptly send Lender copies of any security interest, lien or encumbrance notices of default received from the tenant under any lease; and shall not sell, will enforce (short of terminating such lease, assign () the performance by operation of law or otherwise), exchange or otherwise dispose of any the tenant of the Equipmenttenant's obligations under any lease;
(b) not make, (ii) at the request of the Lenderenter into, Borrower shall execute one execute, cancel, amend or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay modify any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral lease without the prior written consent of Lender; (vi) Borrower will allow Lender and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and (vii) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and ;
(c) all other financial information and reports that Lender may not approve any assignment of a lease, of any sublease or underlease, without the prior written consent of Lender;
(d) not cancel or modify any guaranty of a lease, or release any security deposit or letter of credit constituting security under a lease, without the prior written consent of Lender;
(e) not accept prepayment of any installment of rent from any tenants of the Property for a period of more than one (1) month in advance;
(f) not further assign the whole (or any part of) the leases or the rents;
(g) except for completion of Building Two, not undertake or commence any alterations of any improvements on the Property the cost of which is in excess of five percent (5%) of the then original principal amount of the Note, without the prior written consent of Lender;
(h) from time to time time, at the request of Lender, (i) promptly correct any defect, error or omission which may be discovered in the contents of this Instrument or in any other Loan Document or in the execution or acknowledgement thereof; (ii) execute, acknowledge, deliver and record and/or file such further documents or instruments (including, without limitation, further mortgages, security agreements, financing statements, continuation statements, assignments of rents or leases and environmental indemnity agreements) and perform such further acts and provide such further assurances as reasonably requestmay be necessary, desirable or proper, in Lender's opinion, to carry out more effectively the purposes of this Instrument and such other instruments and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including income tax returns of Borrower and specifically, but without limitation, any guarantor of Borrower's obligations hereunder.renewals, additions, substitutions, replacements, or appurtenances to the Property; provided that such documents or instruments do not materially
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BORROWER'S ADDITIONAL COVENANTS. Each Borrower hereby covenants, agrees and covenants as followsundertakes to:
(A) from time to time, at the reasonable request of Lender or Collateral Agent, (i) promptly correct any patent defect or error which may be discovered in the contents of this Agreement, the Security Instruments or any of the other Loan Documents or in the execution or acknowledgment thereof; (ii) execute, acknowledge, deliver and record and/or file such further documents or Security Instruments (including without limitation, further mortgages, security agreements, financing statements, continuation statements, and assignments of rents or leases) and perform such further acts and provide such further assurances as may be necessary, desirable or proper, in Lender's or Collateral Agent's reasonable opinion, to carry out more effectively the purposes of this Agreement and such other Security Instruments and to subject to the liens and security interests hereof and thereof any property intended by the terms hereof or thereof to be covered hereby or thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Properties; and (iii) execute, acknowledge, deliver, procure, and file and/or record any document or Security Instruments (including specifically, but without limitation, any financing statement) reasonably deemed necessary by Lender or Collateral Agent to protect the liens and the security interests herein granted against the rights or interests of third persons; provided that such documents or Security Instruments do not increase such Borrower's liability or obligations under the Loan Documents or cause a default under any Lease. Borrowers will pay all reasonable costs connected with any of the foregoing in this subparagraph (A), which are incurred for actual filing, recording, or similar fees and costs;
(B) continuously maintain such Borrower's existence, if applicable, as a bankruptcy remote special purpose entity (meeting the requirements of paragraph 27(I)), and having as its general partner a corporation or a limited liability company which meets the requirements of paragraph 27(I), and which has at least one independent director whose vote is required to authorize the filing on behalf of itself or the Borrower of a bankruptcy, consent to an involuntary bankruptcy, or the commencement of any other kind of insolvency proceeding, and such Borrower shall maintain its right to do business, as applicable, in the states where it operates;
(C) at any time any law shall be enacted imposing or authorizing the imposition of any tax upon any Security Instrument or any of the other Loan Documents, or upon any rights, title, liens or security interests created hereby, or upon the obligations secured hereby or any part thereof, pay all such taxes within the applicable payment period; provided that, if such law as enacted makes it unlawful for any Borrower to pay such tax, such Borrower shall not pay nor be obligated to pay such tax, and in the alternative, such Borrower may, in the event of the enactment of such a law, and must, if it is unlawful for such Borrower to pay such taxes, prepay the obligations secured hereby in full within one hundred twenty (120) days after demand therefor by Lender or Collateral Agent, without penalty or premium;
(D) promptly pay all reasonable and bona fide out-of-pocket costs, fees and expenses and other expenditures, including, but not limited to, reasonable attorneys' fees and expenses, paid or incurred by Lender or Collateral Agent to third parties incident to this Agreement, the Security Instruments or any of the other Loan Documents (including, but not limited to, reasonable attorneys' fees and expenses in connection with the negotiation, preparation and execution hereof and of any other Loan Document and any amendment hereto or thereto, any release hereof, any consent, approval or waiver hereunder or under any other Loan Document, the making of any Loan under the Note, and any suit to which Lender or Collateral Agent is a party involving this Agreement or the Properties including any such fees incurred on appeal of such suit and all Program Indemnities, as defined in the CP Loan Agreement, and all Indemnified Liabilities, as defined in the Liquidity Agreement) or incident to the enforcement of the obligations secured hereby or the exercise of any right or remedy of the Lender or Collateral Agent under any Loan Document;
(E) after a Default, at its sole cost and expense, furnish Lender or Collateral Agent with such title endorsements or updates to Lender's or Collateral Agent's title insurance policy as Lender or Collateral Agent may reasonably require, from time to time, to insure Lender or Collateral Agent that no other matters of record affect the condition of title or the priority of Lender's or Collateral Agent's lien;
(F) without limiting any other obligation of the Borrowers hereunder, indemnify, hold harmless and insure the Lender, Affected Parties, and Collateral Agent of and from any and all claim, liability, loss or damage whatsoever, including without limitation reasonable attorneys' and paralegals' fees and costs, arising from or in any way relating to the Properties, this Agreement, the Security Instruments or any of the other the Loan Documents, save only and except for any claim or loss arising from the security interest granted herebygross negligence or intentional breach or misconduct by Lender, Affected Parties, or Collateral Agent;
(G) within five (5) business days after an officer of a Borrower shall obtains actual knowledge of any failure or breach or violation or a Default under this Agreement, provide Lender and Collateral Agent with written notice thereof;
(H) keep the Equipment free and clear of any security interest, lien or encumbrance covenants set forth in the Security Instrument;
(I) not and shall not sellnot: (a) engage in any business or activity other than the ownership, leaseoperation, assign maintenance, and disposition of its Property as defined under and subject to this Agreement, (by operation b) acquire or own any material assets other than (i) its Property, and (ii) such incidental personal property as is reasonably related to its ownership and leasing of law its Property; (c) merge into or otherwise)consolidate with any person or entity or dissolve, exchange terminate or liquidate in whole or in part, transfer or otherwise dispose of any all or substantially all of its assets (except as permitted herein) or change its legal structure, without in each case Lender's consent; (d) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the Equipmentjurisdiction of its organization or formation, or without (ii1) at the request of the Lender, Borrower shall execute one or more Financing Statements and continuation statements pursuant to the Uniform Commercial code to establish and maintain its security interest in the Collateral, in form satisfactory to Lender, and will pay any filing fees and/or costs with respect thereto and for lien searches; (iii) Borrower authorizes Lender to file one or more Financing Statements covering the Collateral without Borrower's signature thereto; (iv) Borrower will immediately notify Lender in writing of any change in its place(s) of business or the adoption or change of any trade name or fictitious business names and will execute any additional Financing Statements as Lender may request to perfect and maintain its security interest, but such notice shall not be deemed an authorization to move the Collateral without the prior written consent of LenderLender and the Collateral Agent, which consent shall not be unreasonably withheld, and (2) the prior written consent of the credit rating agency or agencies approved by Voyager (the "Rating Agency"), amend, modify, terminate or fail to comply with the provisions of such Borrower's organizational documents; (vie) Borrower will allow own any subsidiary, or make any investment in, any person or entity without the consent of Lender and its representatives free access to the Collateral at all times during normal business hours, for purposes of inspection and repair and, following an Event of Default, lender shall have the right to demonstrate and show the Collateral to others and (vii) Borrower will furnish to Lender (and will cause any guarantor of Borrower's obligations hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days after the end of its first three quarters in each fiscal year, (b) its certified Financial Statement prepared by an independent certified public accountant within ninety (90) days after the close of its fiscal year which shall be prepared in accordance with generally accepted accounting principles and (c) all other financial information and reports that Lender may from time to time reasonably request, including income tax returns of Borrower and any guarantor of Borrower's obligations hereunder.Agent;
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