REASONABLY BE EXPECTED TO CAUSE, AN ADVERSE EVENT;
(N)
IMMEDIATELY UPON BECOMING AWARE OF THE OCCURRENCE THEREOF, NOTICE
OF ANY VIOLATION AS TO ANY ENVIRONMENTAL MATTER BY EITHER BORROWER AND OF THE
COMMENCEMENT OF ANY JUDICIAL OR ADMINISTRATIVE PROCEEDING RELATING TO HEALTH,
SAFETY OR ENVIRONMENTAL MATTERS (I) IN WHICH AN ADVERSE DETERMINATION OR RESULT
COULD RESULT IN THE REVOCATION OF OR HAVE A MATERIAL ADVERSE EFFECT ON ANY
OPERATING PERMITS, AIR EMISSION PERMITS, WATER DISCHARGE PERMITS, HAZARDOUS
WASTE PERMITS OR OTHER PERMITS HELD BY EITHER BORROWER WHICH ARE RELATED TO THE
SIOUX FALLS RESTAURANT OR OTHERWISE MATERIAL TO THE OPERATIONS OF THE BORROWER,
OR (II) WHICH WILL OR THREATENS TO IMPOSE A MATERIAL LIABILITY ON THE BORROWERS
OR WHICH WILL REQUIRE A MATERIAL EXPENDITURE BY THE BORROWERS TO CURE ANY
ALLEGED PROBLEM OR VIOLATION.
(O)
FROM TIME TO TIME, SUCH OTHER INFORMATION REGARDING THE BUSINESS,
OPERATION AND FINANCIAL CONDITION OF THE BORROWERS AND ANY COLLATERAL SECURITY
THE OBLIGATIONS AS THE ADMINISTRATIVE AGENT MAY REASONABLY REQUEST.
Section 5.2
Financial Covenants.
(A)
MINIMUM INCOME FROM RESTAURANT OPERATIONS.
FOR EACH PERIOD SET
FORTH BELOW, MAINTAIN MINIMUM OPERATING INCOME FROM THE RESTAURANT BEFORE
INTEREST, TAXES, DEPRECIATION AND AMORTIZATION ("IROP"), MEASURED AS OF THE END
OR EACH MONTH ON A ROLLING THREE-MONTH AVERAGE, OF AT LEAST THE AMOUNT SET FORTH
BELOW FOR EACH SUCH MEASUREMENT DATE, AS IROP HAS HISTORICALLY BEEN CALCULATED
BY THE BORROWERS IN ACCORDANCE WITH GAAP:
Period Ending
Minimum IROP
March 31, 2009
$
56,300
April 28, 2009
$
59,144
May 26, 2009
$
65,794
June 30, 2009
$
69,350
July 28, 2009
$
72,654
August 25, 2009
$
70,301
September 29, 2009
$
67,533
October 27, 2009
$
64,832
November 24, 2009
$
62,537
December 29, 2009
$
62,183
January 26, 2010
$
58,735
February 23, 2010
$
56,733
14
March 30, 2010
$
56,300
April 27, 2010
$
59,144
May 25, 2010
$
65,794
June 29, 2010
$
69,350
July 27, 2010
$
72,654
August 31, 2010
$
70,301
September 28, 2010
$
67,533
October 26, 2010
$
64,832
November 30, 2010
$
62,537
December 28, 2010
$
62,183
(B)
MINIMUM CONSOLIDATED REVENUE.
MAINTAIN BORROWERS' NET
CONSOLIDATED REVENUE ON A QUARTERLY BASIS, AND CALCULATED AS NET CONSOLIDATED
REVENUES HAVE BEEN HISTORICALLY CALCULATED BY THE BORROWERS, IN AN AMOUNT NOT
LESS THAN THE AMOUNT SET FORTH BELOW FOR SUCH PERIOD:
Quarter Ending
Net Revenue
March 31, 2009
$
19,231,625
June 30, 2009
$
23,137,580
September 29, 2009
$
22,516,093
December 29, 2009
$
22,840,619
March 30, 2010
$
19,231,625
June 29, 2010
$
23,137,580
September 28, 2010
$
22,516,093
December 28, 2010
$
22,840,619
Section 5.3
Existence. Maintain its existence as a Minnesota
corporation in good standing under the laws of its jurisdiction of formation and
its qualification to transact business in each jurisdiction in which the
character of the properties owned, leased or operated by it or the business
conducted by it makes such qualification necessary.
Section 5.4
Insurance. Maintain with financially sound and reputable
insurance companies such insurance