This excerpt taken from the BPFH 8-K filed Dec 28, 2005.
The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any Obligation remains unpaid or outstanding:
Section 5.1. Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by independent public accountants of recognized standing satisfactory to the Agent (without a going concern or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, and the related consolidated statement of cash flows for the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrowers previous Fiscal Year; for so long as the Borrower files its quarterly financial statements with the Securities and Exchange Commission, or its successor, delivery of a copy of the Borrowers Form 10-Q as filed with the Securities and Exchange Commission or such successor shall satisfy the foregoing covenant;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the chief financial officer or treasurer of the Borrower;
(d) within 45 days after the end of each quarter of each fiscal year of each Subsidiary Bank, a copy of the Call Report furnished to the FDIC with respect to such quarter by such Subsidiary Bank. If the foregoing Call Report does not state the amount of all loans made by such Subsidiary Bank that are 90 days or more past due (either principal or interest), in non-accrual status, or listed as other restructured or other real-estate owned in any reports to regulatory authorities, then the Borrower will furnish or cause such Subsidiary Bank to furnish each Bank with a schedule of all such loans;
(e) promptly upon filing with the Federal Reserve Bank, each FR Report Y-9C and FR Report Y9-LP;
(f) promptly after the same become publicly available, electronic or paper copies of all periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, except in respect of any single shareholder, or distributed by the Borrower to its shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request.
Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to time.
Section 5.2. Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of the Borrower, affecting the Borrower or any Subsidiary which, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the Borrower or any of its Subsidiaries (i) fails to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) becomes subject to any Environmental Liability, (iii) receives notice of any claim with respect to any Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability and in each of the preceding clauses, which individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $1,000,000;
(e) the occurrence of any default or event of default, or the receipt by Borrower or any of its Subsidiaries of any written notice of an alleged default or event of default, respect of any Material Indebtedness of the Borrower or any of its Subsidiaries; and
(f) the issuance of any cease and desist order, memorandum of understanding, cancellation of FDIC insurance, or proposed disciplinary action from the FDIC or other regulatory entity;
(g) the commencement of any investigation of the Borrower or any of its Subsidiaries, other than routine bank and Securities and Exchange Commission examinations; and
(h) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.2 shall be accompanied by a written statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and its respective rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business and will continue to engage in the same business as presently conducted or such other businesses that are reasonably related thereto; provided, that nothing in this Section 5.3 shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental Authority applicable to its business and properties, including without limitation, the Bank Holding Company Act of 1956, as amended, all existing regulations of the Federal Reserve Board relating to bank holding companies, and all Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its Subsidiaries to, pay and discharge at or before maturity, all of its obligations and liabilities (including without limitation all tax liabilities and claims that could result in a statutory Lien) before the same shall become delinquent or in default, except where (i) (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect, or (ii) obligations with respect to federal and state income taxes for Fiscal Years ended prior to the Closing Date, to the extent such obligations do not in the aggregate exceed $2,000,000 and have been reserved for by the Borrower in accordance with GAAP.
Section 5.6. Books and Records. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities to the extent necessary to prepare the consolidated financial statements of Borrower in conformity with GAAP.
Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of its Subsidiaries to, permit any representative of the Administrative Agent or any Lender, to visit and inspect its properties, to examine its books and records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with any of its officers and with its independent certified public accountants, all at such reasonable times and as often as the Administrative Agent or any Lender may reasonably request after reasonable prior notice to the Borrower; provided, however, if an Event of Default has occurred and is continuing, no prior notice shall be required.
Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business, and the properties and business of its Subsidiaries, against loss or damage of the kinds customarily insured against by bank holding companies and banks similarly situated. Each Subsidiary Bank shall have its deposits insured by the FDIC to the extent available.
Section 5.9. Use of Proceeds. The Borrower will use the proceeds of all Loans to refinance Indebtedness outstanding on the Closing Date, to finance working capital needs, permitted investments, dividends and acquisitions, and for other general corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose, whether immediate, incidental or ultimate, of purchasing or carrying any margin stock) within the meaning of Regulations T, U or X of the Board of Governors of the Federal Reserve System, as amended from time to time. If requested by any Lender, Borrower will furnish to such Lender a statement in conformity with the requirements of Federal Reserve Form U-1. No part of the proceeds of any Loan will be used (i) for any purpose which violates or is inconsistent with the provisions of Regulation U or X of the Board of Governors of the Federal Reserve System, as amended from time to time or (ii) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended, or any regulations or rulings thereunder.
Section 5.10. Well Capitalized. The Borrower will (i) (A) maintain a well capitalized status as of the last day of each Fiscal Quarter and (B) will not, to the best of Borrowers knowledge, at any other time fail to maintain a well-capitalized or adequately capitalized status and (ii) cause each Subsidiary Bank to (A) maintain a well capitalized status as of the last day of each Fiscal Quarter and (B) not, to the best of Borrowers knowledge, at any other time fail to maintain a well capitalized status, in each case for purposes of the Federal Deposit Insurance Corporation Improvement Act of 1991 and any regulations issued thereunder (including 12 C.F.R. §565.4), as amended or supplemented from time to time.