Representations and warranties
To induce Bank to make the Loan (s) Debtor represents and warrants and continues to represent and warrant that:
10.1 Debtor, if a corporation or partnership, is duly organized, validly existing and in good standing to do business in those jurisdictions in which its ownership or property or the conduct of its business requires such qualification, and has the power to carry on its business as it is presently being conducted, as well as to enter into and perform this Agreement, to effect the Loan (s), and to execute the Note (s) and other documents as herein provided.
Учебник коммерческого перевода. Английский язык
10.2 The financial statements which have been heretofore furnished to Bank by Debtor pursuant to the terms of this Agreement were prepared in conformity with generally accepted accounting principles, consistently applied, and fairly reflect the financial condition of Debtor as of
___________________, 19 There are no known or
threatened contingent liabilities of Debtor, which have not
been disclosed in said financial statements, nor has there
been any material adverse change in the financial condi
tion, business or operations of Debtor since
________________,19 _.
10.3 Except as detailed in a separate letter attached
hereto, no claim, litigation, governmental proceeding is
pending or, to the knowledge of Debtor, threatened against
Debtor, the result of which may have a material adverse
affect on the financial condition, operations or business of
Debtor, or which may adversely affect the ability of Debt
or to perform its Obligations hereunder, under the Note
(s), or under any other documents executed pursuant to
and in conjunction with this Agreement.
10.4 The making of this Agreement and the issuance
of the Note (s) and other document executed pursuant to
and in conjunction with this Agreement, and compliance
with their terms, will not violate any provision of any other
instrument or document or result in a breach of any term
or condition of, or result in the imposition of any lien,
charge or encumbrance upon, any property of Debtor pur
suant to, or constitute a default under, any indenture,
agreement or instrument to which Debtor is a party or by
which it is bound.
10.5 Debtor has timely filed, or caused to be timely
filed all federal, state and local tax returns which are re
quired to be filed and has paid or caused to be paid all taxes
which are due and payable pursuant to said returns or pur
suant to any assessment duly filed against Debtor.
С. А. Семко, В. В. Сдобников, С. И. Чекунова
10.6 This Agreement, the Note (s), the Surety
Agreement (s), the Security Agreement (s), and all other
documents required by this Agreement, when executed
by Debtor and others, if any, and delivered to Bank,
shall be valid and binding obligations of the parties
thereto, enforceable in accordance with their respec
tive terms.
10.7 No event has occurred or failed to occur which,
with the passage of time or giving of notice, or both, would
be an Event of Default hereunder.
10.8 Debtor keeps its records with respect to its Ac
counts at the following address (s):
(Street & No) (City) (County) (State) (Zip Code)
(Street & No) (City) (County) (State) (Zip Code)
10.9 Debtor keeps its equipment and the bulk of its Inventory at the following location (s):
(Street & No) (City) (County) (State) (Zip Code)
(Street & No) (City) (County) (State) (Zip Code)
10.10 Except as provided in a schedule provided by Debtor attached hereto and incorporated herein as though set forth in full in this paragraph, the property and assets of Debtor are not subject to any lien, encumbrance or security interest which has arisen other than in the normal course of business, and Debtor has good and marketable title to all of its assets, subject only to the security interest, if any, granted in connection with this Agreement.
All of the above representations and warranties shall survive the making of this Agreement and the issuance of the Note (s).
Учебник коммерческого перевода. Английский язык
11. AFFIRMATIVE COVENANTS
So long as Bank has not terminated this Agreement pursuant to paragraph 7 hereof, Debtor agrees it will do of the following:
11.1 Debtor will deliver to Bank:
a) as soon as available and, in any event, within 45 days
after the close of each of the quarterly periods of each fiscal
year of Debtor, a balance sheet of Debtor and statements of
income, retained earnings and surplus, and a statement of
change in financial position of Debtor as of the end of such
period, and for the portion of such fiscal year preceding the
end of such period, all in reasonable detail and certified by
an officer of Debtor or an independent certified public ac
countant to be true and correct and prepared in accordance
with generally accepted accounting principles, consistently
applied. If Debtor has subsidiaries or affiliates oris a group
of companies or business organizations, Debtor shall pro
vide to Bank all such statements on both a consolidated and
consolidating basis.
b) as soon as available and, in any event, within 90 days
after close of each fiscal year of Debtor, a balance sheet of
Debtor and statements of income, retained earnings and
surplus, and a statement of change in financial position of
Debtor as'of the end of and for such fiscal year preceding
the end of such period, all in reasonable detail and certi
fied by an independent certified public accountant select
ed by Debtor and satisfactory to Bank, prepared in ac
cordance with generally accepted accounting principles,
consistently applied.
If Debtor has subsidiaries or affiliates or is a group of companies or business organizations, Debtor shall provide to Bank all such statement on both a consolidated and consolidating basis.
c) copies of all notices or reports, if any, furnished to
Debtor by its independent certified public accountant in
7 Зак. 5274
С. А. Семко, В. В. Сдобников, С. Н. Чекунова
connection with each fiscal year audit of the books of Debtor made by such accountant.
d) such other information regarding the business, op
erations and finances of Debtor as Bank may from time to
time request, including, but not limited to, information
required in reports to governmental agencies having juris
diction over Debtor or Debtor's operations or business af
fairs.
e) as soon as possible and, in any event, within five (5)
days of notice to Debtor, written notice of any litigation or
regulatory proceeding commenced or threatened against
Debtor, the results of which may have a material, adverse
effect upon the financial condition of Debtor or, when
combined with all other litigation threatened or asserted
against Debtor, may create an aggregate potential liability
in excess of $__________________________, regardless of
Debtor's or Debtor's counsel's opinion as to the likelihood of success of such litigation.
f) immediate notice of any adverse change in the busi
ness, operations or finances of Debtor, or of any develop
ment which might cause an adverse change in the busi
ness, operations or finances of Debtor.
11.2 Debtor will furnish to Bank, within five (5) days
of any election or appointment of officers or directors,
written notice of any change in the persons who, from time
to time, become officers and directors of Debtor and who
must be satisfactory to Bank, it being understood that the
present officers and directors of Debtor are satisfactory to
Bank.
11.3 Debtor will, at Debtor's sole expense, maintain in
good condition and repair, all property, real and personal,
owned, leased or otherwise in the possession of Debtor.
Debtor shall notify Bank, in writing, within five (5) days,
of any change in the status or condition of any of its prop
erty that would adversely affect its ability to do business.
Учебник коммерческого перевода. Английский язык
11.4 Debtor shall maintain adequate books, records and
accounts on a consistent basis, in accordance with gener
ally accepted accounting principles, consistently applied.
Debtor shall permit any officer, employee or agent of
Bank, as designated by Bank, to visit and inspect the prop
erties of Debtor, examine its books and records, make ex
tracts therefrom and discuss the affairs and finances of
Debtor with its officers and employees at any time during
regular business hours and as often as Bank may reasona
bly request.
11.5 Debtor will use Bank as its sole and primary de
pository institution to the extent reasonably feasible, un
less otherwise agreed by Bank in writing. Debtor will noti
fy Bank, in writing and on a continuing basis, of all deposit
account and certificates of deposit maintained with or
purchased from other banks and other financial institu
tions, and Debtor's deposit account and certificate of de
posit numbers.
11.6 Debtor will pay and discharge, on or prior to the
date when they become due, all taxes, assessments and
governmental charges imposed upon Debtor or its proper
ties, assets, operations, products, income or securities;
provided, however, that this covenant shall not apply to
any tax, assessment or governmental charge so long as the
validity or amount thereof is being contested by Debtor in
good faith by appropriate proceeding and for which Debt
or shall have set aside adequate reserves for the payment of
such tax, assessment or charge.
If Debtor fails to pay such taxes, assessments or charges when due, or is not contesting the same in good faith, or has not set aside adequate reserves for the payment thereof, Bank may discharge the same, and any amounts so advanced by Bank for such purposes shall be added to the Note (s), and shall bear interest at the rate provided in the Note (s).
С. А. Семко, В. В. Сдобников, С. Н. Чекунова
11.7 Debtor, if a corporation, will maintain its corpo
rate existence in full force and effect.
11.8 Debtor will comply with all laws and regulations
applicable to Debtor in the operation of its business.
11.9 Debtor will keep all of its patents, franchises, cop
yrights, licenses, trademarks and the trade names in full
force and effect until their respective expiration dates.
11.10 Debtor will pay all rentals or other sums required
by any lease or mortgage to which Debtor is a party as the
same shall become due and payable, perform all of Debt
or's obligations as tenant or mortgagor thereunder, and keep
any applicable lease (s) at all times in full force and effect.
11.11 Debtor will, when requested by Bank, promptly
provide Bank with a statement, which lists and describes
all of Debtor's accounts receivable and accounts payable,
and their aging status.
11.12 Debtor will, at all times, maintain «Working Cap
ital» of not less than $_____________. For purposes of this Agree
ment, «Wbrking Capital» means the excess of net current
assets over net current liabilities of Debtor, all computed
in accordance with generally accepted accounting princi
ples, consistently applied.
11.13 Debtor will, at all times, maintain its «Current
Ratio», herein defined as net current assets divided by net
current liabilities, each computed in accordance with gen
erally accepted accounting principles, consistently applied,
at not less than____________ to_________.
11.14 Debtor will, at all times, maintain its «Tangible
Net Worth», herein defined as the excess of tangible assets
over total liabilities (total liabilities excludes debt subor
dinated to the Obligations), each determined in accord
ance with generally accepted accounting principles, con
sistently applied, at not less than $________________, which amount
is to be increased on a cumulative basis by $_______________________
annually thereafter.
Учебник коммерческого перевода. Английский язык
11.15 Debtor will, at all times, maintain its «Debt to
Equity Ratio», herein defined as Total Liabilities divided
by Tangible Net Worth, «Total Liabilities» being defined
in accordance with generally accepted accounting princi
ples, consistently applied, and Tangible Net Worth as de
fined above, at not more than_____________ to___________.
11.16 Debtor will insure its property and equipment
against such casualties as is customary in Debtor's industry
or as Bank shall require, in such forms and amounts and in
such companies as shall be satisfactory to Bank. All insur
ance policies shall be written for the benefit of Debtor and
Bank as their interests may appear and Debtor shall en
dorse on all such policies the name of Bank as loss payee
and such policies and certificates of insurance evidencing
the same shall be furnished to and retained by Bank. If
Debtor fails to pay such insurance premiums when due,
Bank may pay the same to retain the policies in full force
and any amounts so advanced by Bank shall be added to
the Note (s) and shall bear interest at the rate provided in
the Note (s).
11.17 Debtor will cause all of its officers, directors and
stockholders who are creditors of Debtor and are owed
debts or other obligations by Debtor to subordinate such
obligations to Bank by executing Bank's standard Subor
dination Agreement.
NEGATIVE COVENANTS
During the term of this Agreement, Debtor agrees that, without the prior express written consent of Bank, it will not do, nor will it permit any or all of its subsidiaries and/ or affiliates, if any, any or all of the following:
12.1 Create, incur, assume or suffer to exist any indebtedness for borrowed money except the Obligations to Bank, other than indebtedness set forth in a schedule provided by Debtor which is attached hereto and incor-
С. А. Семко, В. В. Сдобников, С. Н. Чекунова
porated herein as though set forth in full in this paragraph.
12.2 Create, incur, assume or suffer to exist any mort
gage, lease, lien, pledge, charge or encumbrance of any
kind on any of its property other than in favor of Bank,
without first receiving express written approval of Bank,
except:
(a) liens for taxes, assessment or governmental charg
es being contested in good faith by appropriate proceed
ings and for which adequate reserves have been estab
lished;
(b) pledges or deposits to secure obligations under
workmen's compensation, unemployment insurance or
social security laws or similar legislation;
(c) deposits to secure performance of bids, tenders,
contracts, leases, or public or statutory obligations of
Debtor;
(d) materialman's, mechanic's, carrier's, workmen's or
other like liens in the ordinary course of Debtor's business,
or deposits to obtain the release of such liens;
(e) deposits to secure surety, appeal or custom's bonds
to which Debtor is a party;
(f) deposits as reserves for delinquent and/or contested
taxes; and
(g) those set forth in a schedule provided pursuant to
paragraph 10.9.
12.3 Make any loans or advances to or investments in
the securities of any other person, firm or corporation,
except investments in direct obligations of the United
States of America, or commercial paper or money market
investments acceptable to Bank.
12.4 Guarantee, assume, endorse, become surety to
or otherwise become directly or contingently liable in con
nection with or upon obligations of any person, firm, as
sociation or corporation, except the endorsement o£
Учебник коммерческого перевода. Английский язык
checks and other instruments for collection or similar transactions in the ordinary course of business.
12.5 Enter into any transaction of merger or consoli
dation or enter into the sale, lease, sale-leaseback, release,
or disposal of all or any part of its assets out of the ordinary
course of business or sell any Inventory or property below
Debtor's cost or dispose of any single item of Equipment
which at the time of such disposition has a fair market val
ue in excess of $__________ _.
12.6 Declare or pay any dividends except in the form
of capital stock of the Debtor or in any amount not to
exceed in the aggregate $____________ per annum. Additionally,
Debtor may not redeem, purchase or otherwise acquire any shares of its capital stock.
12.7 Lease, as lessee, real or personal property with an
aggregate annual rental in excess of $___________________.
12.8 Sell, assign or transfer any of its Accounts or any
of its contracts or subcontracts, or any interest therein.
12.9 Make capital expenditures for fixed assets in an
aggregate amount in excess of $__________________ annually dur
ing any fiscal period.
12.10 Substantially change the nature of its business or
its mode of operation.
12*11 Enter into any arrangement for the acquisition
of any real or personal property subject to any conditional
sale agreement or lease subject to purchase, or enter into
any other title retention agreement, during any annual fis
cal period of Debtor in an aggregate amount in excess of
$____________.
12.12 Create or have any subsidiaries or affiliates, oth
er than those listed in a schedule attached hereto and in
corporated herein.
12.13 Enter into any business or other transaction (i)
with any stockholder, partner or owner who owns 10 % or
more of any class or classes of the stock of Debtor, or (ii)
С. А. Семко, В. В. Сдобников, С. Н. Чекунова
with any affiliate and/or subsidiary of Debtor, except, in either case, on such terms and conditions as Debtor deals with independent parties at arms' length and, in either of such events, Debtor must provide Bank with a monthly list and description of all such transactions.
12.14 Enter into any transaction for the acquisition
of any business, firm or corporation, or substantially all
of the assets thereof, including, but not limited to, such
transaction on behalf of any affiliate and/or subsidiary of
Debtor.
12.15 Permit any of Debtor's Equipment to be removed
from Debtor's place (s) of business.
12.16 Permit any of the Collateral, as that term is de
fined in the Security Agreement (s), to be repossessed or
levied upon under any legal process.
12.17 Permit anything to be done that may impair the
value of any Collateral, as that term is defined in the Se
curity Agreement (s).
12.18 Expend or become obligated to expend for fixed
assets and improvements to its plant in excess of
$ during any fiscal year of Debtor.
12.19 Make any change in the Board of Directors or in
the five (5) most senior officer positions of management
of Debtor without first obtaining Bank's written consent,
which will not be unreasonably withheld.
EVENTS OF DEFAULT
Each of the following shall be an «Event of Default» under this Agreement:
13.1 If any of Obligor's (defined herein as including Debtor and any and all other persons liable, either absolutely or contingently, in connection with this Agreement, including endorsers, sureties, guarantors and owners of any property securing any sums due in connection with this Agreement) statements, representations, warranties, or
Учебник коммерческого перевода. Английский язык
signatures contained in this Agreement, or in any document issued in connection with this Agreement, or contained in any application, exhibit, statement, certificate or other document supplied to Bank at any time was or is false, incorrect, incomplete or misleading.
13.2 The failure of Obligor to observe or perform
any of Obligor's covenants and obligations under this
Agreement or any other agreement Obligor has with
Bank.
13.3 Any Obligor fails to observe or perform any obli
gation or covenant of any nature with Bank, whether or
not arising in connection with this Agreement.
13.4 Any Obligor becomes insolvent or makes an as
signment for the benefit of creditors, or any petition is
filed by or against any Obligor under any provision of any
state or federal law alleging that such Obligor is unable to
pay debts as they mature, or under any provision of the
Federal Bankruptcy Code.
13.5 Any attachment, levy or garnishment issues against
any property of any Obligor.
13.6 Any judgement or tax lien is entered against any
Obligor, which remains unsatisfied after 15 (fifteen)
days^ '.—
13.7 A receiver, trustee, conservator other court offic
er is appointed over any Obligor or any of Obligor's prop
erty for any purpose.
13.8 The occurrence of any change in the financial con
dition or affairs of any Obligor that, in the sole reasonable
judgement of Bank, is materially adverse.
13.9 Without the prior written consent of Bank, any
Obligor which is a corporation or partnership dissolves,
merges, consolidates, reorganizes, terminates its existence,
sells or transfers all or substantially all of its assets out of
the ordinary course of business, or suffers to occur or per
mits a substantial change, as determined by Bank in its
С. А. Семко, В. В. Сдобников, С. Н. Чекунова
sole reasonable judgement, in its ownership, control or management.
13.10 The death, incarceration or legal incompetency
of any Obligor if such Obligor is a natural person or, if Ob
ligor is a partnership, the death, incarceration or legal in
competency of any general partner.
13.11 Any Obligor fails to promptly furnish to Bank
such financial and other information as Bank may require
at any time and form from time to time.
13.12 Debtor borrows money from any source other
than Bank, whether or not subordinate in payment to the
sums due in connection with this Agreement, without
Bank's prior written consent.
BANKS RIGHTS UPON DEFAULT
Upon or after the occurrence of any Event of Default, Bank may exercise any or all of the following rights and remedies, without notice and at its option. Bank's rights and remedies shall be cumulative and not alternative, and the exercise of any right or remedy shall not constitute a waiver of Bank's other rights and remedies, nor exhaust Bank's ability to again exercise the same or any other right or remedy. Bank may exercise any or all of its rights or remedies from time to time as often as Bank deems necessary or desirable.
14.1 Notwithstanding any commitment to make fur
ther loans or advances contained in any other agreement
between Debtor and Bank, Bank may refuse to make any
further loans and advances to Debtor.
14.2 Bank may declare all liabilities and obligations of
Debtor to be immediately due and payable.
14.3 Bank may exercise any and all rights, privileges
and remedies available to Bank pursuant to law or pursu
ant to any instrument, agreement or document executed
or delivered to Bank in connection with this Agreement,
or otherwise.
Учебник коммерческого перевода. Английский язык
14.4 Bank may advance sums to cure any Event of De
fault and add the sums advanced due in connection with
this Agreement. Such cure by Bank shall not waive or ex
cuse such Event of Default.
14.5 Bank may require Obligor to pay all of Bank's
costs of collection and cure, which are expended or in
curred by Bank in connection with Obligor's default, in
cluding Bank's reasonable attorney's fees and court costs,
including but not limited to, those incurred in bankrupt
cy or insolvency proceedings, and any subsequent pro
ceedings or appeals from any judgement or order entered
therein.
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