Amendment of Certificate In the event this Agreement shall be amended pursuant to Section 14.1, the General Partner shall amend the Certificate to reflect such change if it deems such amendment of the Certificate to be necessary or appropriate.
Absence of Certain Changes, Events and Conditions Except as set forth in Section 3.07 of the Dorian Disclosure Schedules, since the Balance Sheet Date, other than the entry into the Term Sheet, the Transaction Documents, the November Private Placement and any transactions contemplated therein, there has not been, with respect to Dorian or any Dorian Subsidiary, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Dorian Material Adverse Effect;
(b) amendment of the charter, by-laws or other organizational documents;
(c) split, combination or reclassification of any shares of its capital stock;
(d) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock, except in the November Private Placement;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) entry into any Contract that would constitute a Material Contract other than in the ordinary course of business;
(g) incurrence, assumption or guarantee of any indebtedness for borrowed money;
(h) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Balance Sheet or cancellation of any debts or entitlements;
(i) material damage, destruction or loss (constructive or actual), whether or not covered by insurance, to any material asset of Dorian or any Dorian Subsidiary;
(j) any capital investment in, or any loan to, any other Person;
(k) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any Material Contract) to which Dorian or any Dorian Subsidiary is a party or by which it is bound;
(l) any capital expenditures in excess of $500,000, excluding any expenditures relating to the acquisition, including any newbuilding contract for the construction of, any Vessel;
(m) imposition of any Encumbrance upon any of Dorian’s or any Dorian Subsidiaries’ Vessels, properties, capital stock or assets, tangible or intangible;
(n) grant of any bonuses, monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of any employee, officer, director, independent contractors or consultant;
(o) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its stockholders, directors, officers and employees;
(p) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(q) purchase, lease or other acquisition of the right to own, use or lease any property or asset for an amount in excess of $500,000, individually or in the aggregate;
(r) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof; or
(s) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Notification of Certain Events Each Borrower shall immediately notify the Security Trustee by fax or Email, confirmed forthwith by letter, of:
(a) any casualty which is or is likely to be or to become a Major Casualty;
(b) any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
(c) any requirement or condition made by any insurer or classification society or by any competent authority which is not immediately complied with;
(d) any arrest or detention of the Ship owned by it, any exercise or purported exercise of any Security Interest on that Ship or the Earnings or any requisition of that Ship for hire;
(e) any intended dry docking of the Ship owned by it;
(f) any Environmental Claim made against that Borrower or in connection with the Ship owned by it, or any Environmental Incident;
(g) any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, the Approved Manager or otherwise in connection with the Ship owned by it; or
(h) any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with; and that Borrower shall keep the Security Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of that Borrower’s, the Approved Manager’s or any other person’s response to any of those events or matters.
Notification of Certain Matters At any time after the date hereof, each of Parent and the Company shall give prompt notice to the other (and will subsequently keep the other informed on a reasonably current basis of any material developments related to such notice) (a) if: (i) with respect to the Company, any fact, event or circumstance occurs or exists that has had or would reasonably be expected to result in a Material Adverse Effect, (ii) with respect to Parent or Purchaser, any fact, event or circumstance occurs or exists that has had or would reasonably be expected to result in a Parent Material Adverse Effect or (iii) any fact, event or circumstance occurs or exists that is reasonably likely to result in any of the conditions set forth in ARTICLE VII or Annex I not being able to be satisfied prior to the Outside Date or is reasonably likely to prevent or materially delay the consummation of the transactions contemplated by this Agreement; (b) upon receipt of any written notice to the receiving Party from any third party alleging that the consent or approval of such third party is or may be required in connection with the transactions contemplated by this Agreement and the pursuit of such consent could (in the good faith determination of such Party) reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement and (c) upon receipt of any material notice or other material communication from any Governmental Entity, Nasdaq or The New York Stock Exchange (or any other securities market) in connection with the transactions contemplated by this Agreement. No notice given by any Party pursuant to this Section 6.16 shall (x) limit or otherwise affect any of the representations, warranties, covenants, obligations or conditions contained in this Agreement or (y) be deemed to amend or supplement the Company Disclosure Letter or constitute an exception to any representation or warranty. The failure to comply with this Section 6.16 will not constitute the failure of any condition set forth in ARTICLE VII or Annex I to be satisfied unless the underlying event would independently result in the failure of such a condition to be so satisfied.
Assumption of Certain Liabilities (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Hexcel shall assume and shall pay, perform and discharge or cause to be paid, performed and discharged when due, all liabilities or obligations whatsoever, whether arising before or after the Closing and whether known or unknown, fixed or contingent (including any identifiable and severable portions of the foregoing (financial liabilities and obligations being deemed severable for purposes of this clause)), other than Excluded Liabilities, relating exclusively or primarily to or arising exclusively or primarily out of the Transferred Business or the Acquired Assets, but, in the case of obligations or liabilities that are severable, only to the extent such liabilities or obligations relate to or arise out of the Transferred Business or the Acquired Assets (the "Assumed Liabilities"). It is understood and agreed that the following liabilities and obligations shall be deemed to relate exclusively or primarily to or arise exclusively or primarily out of the Transferred Business or the Acquired Assets:
(i) all obligations and liabilities of Ciba or its Subsidiaries under the Acquired Contracts;
(ii) the Accounts Payable;
(iii) all obligations and liabilities with respect to any and all products sold or serviced (whether or not under warranty) by the Transferred Business at any time, including obligations and liabilities for and with respect to any refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability, products liability (including with respect to personal injury caused by the use or operation of products sold or serviced by the Transferred Business) and other claims;
(iv) except as specifically provided otherwise in the UK Agreements, any other Ancillary Agreement or a Danutec Agreement, all obligations and liabilities arising as a result of Ciba or any of its past or present Subsidiaries, or any predecessor in interest thereof, being the owner or occupant of, or the operator of the activities conducted at, the Scheduled Real Property sites at any time, including all obligations and liabilities arising out of any Environmental Law (including those arising under CERCLA or from off-site waste disposal from the Scheduled Real Property sites) and all other obligations or liabilities relating to personal injury or property damage involving the Scheduled Real Property sites;
(v) except as otherwise provided in the Employment Matters Agreement or any other Ancillary Agreement, all obligations and liabilities relating to employees of the Transferred Business;
(vi) the Other Tax Liabilities and, to the extent of the amount provided or reserved for or accrued in the balance sheet of the Transferred Business as of the Closing Date, the Income Tax Liabilities of the Divested Subsidiaries (other than Danutec, if the Danutec Equity is not delivered to Hexcel at Closing) (collectively, the "Assumed Tax Liabilities"); and
(vii) except as provided in any Ancillary Agreement or in Section 1.03(c), all other obligations of the Divested Subsidiaries (other than Danutec, if the Danutec Equity is not delivered to Hexcel at Closing) of any kind, whether arising before or after the Closing and whether known or unknown, fixed or contingent.
(b) Notwithstanding anything herein to the contrary, Hexcel shall have no liability or obligation hereunder relating to or arising out of the following liabilities and obligations of Ciba and its Subsidiaries, including, if applicable, any such liabilities and obligations of the Divested Subsidiaries (the "Excluded Liabilities"), all of which are excluded from the Assumed Liabilities, shall not be assumed by Hexcel hereunder and shall remain the liabilities and obligations of Ciba and its Subsidiaries (other than the Divested Subsidiaries):
(i) any obligation or liability relating to or arising out of any of the Excluded Assets to the extent such obligation or liability relates to the Excluded Assets, or the realization of benefits of any of the Excluded Assets;
(ii) the Income Tax Liabilities other than those described in Section 1.03(a)(vi) (the "Excluded Tax Liabilities");
(iii) any obligation or liability involving a claim for products liability relating to or arising out of products of the Transferred Business sold prior to the Closing to Ciba or its Subsidiaries, other than products resold by Ciba or its Subsidiaries to third parties (including as a component of another product);
(iv) any obligation or liability involving a claim for damages caused by asbestos included in or used in the manufacture of products of the Transferred Business that relates to or arises out of products sold or manufactured prior to the Closing;
(v) any obligation or liability relating to or arising out of an event occurring prior to the Closing Date for which Ciba or any of its Subsidiaries has coverage under the following (i) AAV--Policy #0015P-5883, (ii) Lloyd's of London Policy #576-A7A1018, (iii) Winterthur Policy #3095089, (iv) USAIG Policy #51HL2-1224 and (v) CIGNA--Policy #ATP014520;
(vi) all liabilities and obligations for which Ciba or CGC has expressly assumed or retained responsibility pursuant to this Agreement or any Ancillary Agreement;
(vii) all liabilities and obligations relating to the Satellite Personnel (other than as provided in the Distribution Agreement); and
(viii) any obligations or liabilities relating to or arising out of any employee benefit plan of Ciba and/or its Subsidiaries (other than the Divested Subsidiaries) except such obligations or liabilities as are being transferred pursuant to the Employment Matters Agreement or any Ancillary Agreement.
(c) Notwithstanding anything herein (including Section 1.03(a)(vii)) or in any agreement relating to the "hive-down" of assets and liabilities (including agreements relating to the Duxford property transfer) by Ciba-Geigy PLC ("Ciba UK") to Composite Materials Limited ("CML") (the "Hive Down Agreements"), (i) the principles set forth in Section 1.03(a) and (b) as to the allocation of particular liabilities among Assumed Liabilities and Excluded Liabilities shall govern the allocation of liabilities between Ciba UK on the one hand and CML on the other hand and (ii) any and all covenants contained herein that provide for the taking of actions by the parties which are intended to give effect to the allocation of liabilities among Assumed Liabilities and Excluded Liabilities shall apply to the allocation of liabilities between Ciba UK on the one hand and CML on the other hand.
Absence of Certain Events No Event of Default or Potential Event of Default or, to its knowledge, Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement or any Credit Support Document to which it is a party.
Notice of Certain Events (a) In case the Company shall propose, at any time after the Distribution Date, (i) to pay any dividend payable in stock of any class to the holders of Preferred Stock or to make any other distribution to the holders of Preferred Stock (other than a regular quarterly cash dividend out of earnings or retained earnings of the Company), or (ii) to offer to the holders of Preferred Stock rights or warrants to subscribe for or to purchase any additional shares of Preferred Stock or shares of stock of any class or any other securities, rights or options, or (iii) to effect any reclassification of its Preferred Stock (other than a reclassification involving only the subdivision of outstanding shares of Preferred Stock), or (iv) to effect any consolidation or merger into or with any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof), or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one transaction or a series of related transactions, of more than 50% of the assets, cash flow or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more transactions each of which complies with Section 11(o) hereof), or (v) to effect the liquidation, dissolution or winding up of the Company, then, in each such case, the Company shall give to each holder of a Rights Certificate, to the extent feasible and in accordance with Section 26 hereof, a notice of such proposed action, which shall specify the record date for the purposes of such stock dividend, distribution of rights or warrants, or the date on which such reclassification, consolidation, merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of participation therein by the holders of the shares of Preferred Stock, if any such date is to be fixed, and such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least twenty (20) days prior to the record date for determining holders of the shares of Preferred Stock for purposes of such action, and in the case of any such other action, at least twenty (20) days prior to the date of the taking of such proposed action or the date of participation therein by the holders of the shares of Preferred Stock, whichever shall be the earlier.
(b) In case any of the events set forth in Section 11(a)(ii) hereof shall occur, then, in any such case, (i) the Company shall as soon as practicable thereafter give to each holder of a Rights Certificate, to the extent feasible and in accordance with Section 26 hereof, a notice of the occurrence of such event, which shall specify the event and the consequences of the event to holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in the preceding paragraph to Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if appropriate, other securities.
Effect of Certain Events (a) If at any time the Company proposes (i) to sell or otherwise convey all or substantially all of its assets or (ii) to effect a transaction (by merger or otherwise) in which more than 50% of the voting power of the Company is disposed of (collectively, a "Sale or Merger Transaction"), in which the consideration to be received by the Company or its shareholders consists solely of cash, the Company shall give the holder of this Warrant thirty (30) days' notice of the proposed effective date of the transaction specifying that the Warrant shall terminate if the Warrant has not been exercised by the effective date of the transaction.
(b) In case the Company shall at any time effect a Sale or Merger Transaction in which the consideration to be received by the Company or its shareholders consists in part of consideration other than cash, the holder of this Warrant shall have the right thereafter to purchase, by exercise of this Warrant and payment of the aggregate Exercise Price in effect immediately prior to such action, the kind and amount of shares and other securities and property which it would have owned or have been entitled to receive after the happening of such transaction had this Warrant been exercised immediately prior thereto.
Absence of Certain Changes and Events Except as set forth in Part 3.15 of the Seller Parties Disclosure Schedule, since the Balance Sheet Date through the Effective Date, the Acquired Company has conducted its business only in the Ordinary Course of Business and none of the following actions or events has occurred:
(a) any material loss, damage or destruction to, or any material interruption in the use of, any of the assets of the Acquired Company (whether or not covered by insurance) that has had or could reasonably be expected to have a Material Adverse Effect;
(i) any declaration, accrual, set aside or payment of any dividend or any other distribution in respect of any shares of capital stock of the Acquired Company, or (ii) any repurchase, redemption or other acquisition by the Acquired Company of any shares of capital stock or other securities;
(c) any sale, issuance or grant, or authorization of the issuance of, (i) shares or other securities of the Acquired Company, (ii) any option, warrant or right to acquire any shares or any other securities of the Acquired Company, or (iii) any instrument convertible into or exchangeable for shares or other securities of the Acquired Company;
(d) any amendment or waiver of any of the rights of the Acquired Company under any share purchase agreement;
(e) any amendment to any Organizational Document of the Acquired Company, any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, share split, reverse share split or similar transaction involving the Acquired Company;
(f) any creation of any Subsidiary of the Acquired Company or acquisition by the Acquired Company of any equity interest or other interest in any other Person;
(g) any capital expenditure by the Acquired Company which, when added to all other capital expenditures made on behalf of the Acquired Company since the Balance Sheet Date, exceeds €10,000 in the aggregate;
(h) except in the Ordinary Course of Business, any action by the Acquired Company to (i) enter into or suffer any of the assets owned or used by it to become bound by any Material Contract (as defined in Section 3.16), or (ii) amend or terminate, or waive any material right or remedy under, any Material Contract;
(i) any (i) acquisition, lease or license by the Acquired Company of any material right or other material asset from any other Person, (ii) sale or other disposal or lease or license by the Acquired Company of any material right or other material asset to any other Person, or (iii) waiver or relinquishment by the Acquired Company of any right, except for rights or other assets acquired, leased, licensed or disposed of in the Ordinary Course of Business;
(j) any write-off as uncollectible, or establishment of any extraordinary reserve with respect to, any Indebtedness of the Acquired Company;
(k) any pledge of any assets of or sufferance of any of the assets of the Acquired Company to become subject to any Encumbrance, except for Permitted Encumbrances and pledges of immaterial assets made in the Ordinary Course of Business;
(l) any (i) loan by the Acquired Company to any Person, or (ii) any incurrence or guarantee of Indebtedness by the Acquired Company;
(m) any (i) adoption, establishment, entry into or amendment by the Acquired Company of any Pension Scheme or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of the directors or officers of the Acquired Company;
(n) any change of the methods of accounting or accounting practices of the Acquired Company in any material respect;
(o) any material Tax election by the Acquired Company;
(p) any commencement or settlement of any Proceeding by the Acquired Company; and
(q) any agreement or commitment to take any of the actions referred to in clauses (c) through (p) above.
