Agreements of the Guarantor. (a) The Guarantor hereby agrees: (i) that, in the event of failure of the Issuer to perform any of its obligations or to enforce when due any of the rights of the Issuer in respect of the exercise of any Conversion and Exchange Rights, the issue of any Preference Shares on any such exercise and the exchange of Preference Shares for Ordinary Shares or ADSs pursuant to the exercise of Conversion and Exchange Rights, in each case in accordance with the Articles and as referred to in the terms of the Securities and the Indenture, the Guarantor will procure the performance by the Issuer of all such obligations and the enforcement by the Issuer of all such rights; (ii) to assign to Holdings its obligations under Section 7.02(a)(ii) of the Original Guarantee, as a consequence of the succession of Holdings as the publicly listed company of the corporate group; and (iii) that, while any Security remains Outstanding, it will not consent to, and will procure that the Issuer will not make, any amendment to Article 9 of the Articles which would vary, abrogate or modify the rights attaching to the Preference Shares save with (a) the consent of the Trustee or (b) (1) the written consent of the holders of not less than a majority in principal amount of the Outstanding Securities by the Act of said holders delivered to the Issuer, the Guarantor and the Trustee; or (2) by the adoption of a resolution, at a meeting of holders of the Outstanding Securities at which a quorum is present, by the holders of a majority in principal amount of the Outstanding Securities represented at such meeting, provided, however, that the consent or affirmative vote of the holder of each Outstanding Security adversely affected shall be required before any amendment is made to Article 9 of the Articles which is adverse to the holders of the Securities, and provided further that no consent of the Trustee nor consent or affirmative vote of any holder of Securities shall be required in relation to any amendment which (i) does not adversely affect the interests of any holder of Securities or (ii) is to cure any ambiguity, omission or defect or to correct or supplement any provision of Article 9 of the Articles which may be inconsistent with any other provision of the Articles or which is otherwise defective, or to make any other provisions with respect to matters arising under the Articles as the Issuer, the Guarantor and the Trustee may deem necessary or desirable, in each case which does not adversely affect the interests of the holders of the Securities. (b) The Guarantor, for so long as any Securities remain outstanding shall use its reasonable efforts to ensure that the Issuer will not be an “investment company” within the meaning of the Investment Company Act or a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended. (c) The Guarantor agrees to use all reasonable efforts to ensure that all corporate steps, including obtaining shareholder approvals if necessary, have been taken for the allotment and issue of the Ordinary Shares or ADSs, free of pre-emptive rights upon the exercise of Conversion and Exchange Rights. (d) The Guarantor agrees to pay all stamp, stamp duty reserve or other issuance or documentary taxes or duties payable in the Cayman Islands, the United Kingdom or the United States in connection with (A) the issuance of Ordinary Shares upon any Conversion and Exchange and (B) their deposit with the ADR Depositary against issuance of American depositary receipts (the “ADRs”) evidencing American depositary shares representing the Ordinary Shares, provided, however, that the Guarantor shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of Preference Shares, Ordinary Shares or ADSs in a name other than the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Issuer or the Guarantor the amount of any such tax or duty, or has established to the satisfaction of the Issuer and the Guarantor that such tax or duty has been paid. Thus Guarantor will not be obligated to pay, and each relevant Holder of Preference Shares must pay, all other taxes arising in connection with such exchange. (e) The Guarantor agrees, as a consequence of the succession of Holdings as the publicly listed company of the corporate group, to assign to Holdings its obligations under Section 7.02(e) of the Original Guarantee.
Appears in 1 contract
Agreements of the Guarantor. The Guarantor (a) The will, upon request of the Collateral Agent, execute and deliver to the Collateral Agent or authorize the recordation of such financing statements, amendments thereto, and other documentation including, but not limited to, Supplemental Documentation (and pay the cost of filing or recording the same in all public offices reasonably deemed appropriate by the Collateral Agent) and do such other acts and things (including, delivery to the Collateral Agent of any Documents, Instruments or Certificated Securities which constitute Collateral), all as the Collateral Agent deems necessary in order to establish and maintain a valid attached and perfected security interest (subject to the priority of liens in favor of the Senior Collateral Agent, for the benefit of the Senior Lenders and the Senior Agents and to Permitted Liens entitled to priority under applicable law) in the Collateral (free of all other liens, claims and rights of third parties whatsoever, other than Permitted Liens) to secure payment of the Liabilities and the Guarantor hereby agrees:
irrevocably authorizes the Collateral Agent at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto that (i) thatindicate the Collateral (y) as all assets of the Guarantor or words of similar effect, regardless of whether any particular asset comprised in the event Collateral falls within the scope of failure of the Issuer to perform any of its obligations or to enforce when due any of the rights of the Issuer in respect of the exercise of any Conversion and Exchange Rights, the issue of any Preference Shares on any such exercise and the exchange of Preference Shares for Ordinary Shares or ADSs pursuant to the exercise of Conversion and Exchange Rights, in each case in accordance with the Articles and as referred to in the terms of the Securities and the Indenture, the Guarantor will procure the performance by the Issuer of all such obligations and the enforcement by the Issuer of all such rights;
(ii) to assign to Holdings its obligations under Section 7.02(a)(ii) of the Original Guarantee, as a consequence of the succession of Holdings as the publicly listed company of the corporate group; and
(iii) that, while any Security remains Outstanding, it will not consent to, and will procure that the Issuer will not make, any amendment to Article 9 of the Articles which would varyUCC of the jurisdiction wherein such financing statement or amendment is filed, abrogate or modify (z) as being of an equal or lesser scope or within greater detail, and (ii) contain any other information required by Section 5 of Article 9 of the rights attaching UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (A) whether the Guarantor is an organization, the Type of Organization and the Organization ID Number issued to the Preference Shares save with Guarantor and (aB) in the consent case of a financing statement filed as a fixture filing or indicating Collateral to be extracted collateral or timber to be cut, a sufficient description of real property to which the Trustee or Collateral relates, the Guarantor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Collateral Agent in any jurisdiction prior to the date of this Agreement; (b) (1unless such Inventory or other Collateral is in transit in the ordinary course of business and remains insured at all times, will keep all its Inventory and other tangible Collateral at, and will not maintain any place of business at any location other than, its address(es) shown on Schedules I and II hereto or at such other addresses of which the written consent of Guarantor shall have given the holders of Collateral Agent not less than 10 days' prior written notice; (c) will keep its records concerning the Non-Tangible Collateral in such a majority in principal amount manner as will enable the Collateral Agent or its designees to determine at any time the status of the Outstanding Securities by Non-Tangible Collateral; (d) will furnish the Act of said holders delivered Collateral Agent such information concerning the Guarantor, the Collateral and, to the Issuerextent in its possession and not subject to confidentiality agreements, the Account Debtors as the Collateral Agent may from time to time reasonably request; (e) will permit the Collateral Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice during the existence of a Default) to inspect the Guarantor's Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of the Guarantor pertaining to the Collateral and the Trustee; or (2) by Account Debtors, and will, upon request of the adoption Collateral Agent during the existence of a resolutionDefault, at a meeting deliver to the Collateral Agent all of holders of the Outstanding Securities at which a quorum is present, by the holders of a majority in principal amount of the Outstanding Securities represented at such meeting, records and papers; provided, however, that with respect to the consent or affirmative vote foregoing, the Guarantor, prior to the occurrence and continuance of a Default, shall only reimburse the Collateral Agent for the cost and expense associated with one field examination and one fixed asset appraisal during each calendar year; (f) will, upon request of the holder Collateral Agent, stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of each Outstanding Security adversely affected the Collateral, a notation, in form satisfactory to the Collateral Agent, of the security interest of the Collateral Agent hereunder; (g) except for the sale or lease of Inventory in the ordinary course of its business, will not sell, lease, assign or create or permit to exist any Lien on any Collateral other than Permitted Liens; (h) will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, including, but not limited to marine cargo insurance, acceptable to the Collateral Agent, and cause all such policies to provide that loss thereunder shall be required before payable to the Collateral Agent as its interest may appear (it being understood that (A) so long as no Default shall be continuing, the Collateral Agent shall deliver any amendment is made proceeds of such insurance which may be received by it to Article 9 the Guarantor and (B) whenever a Default shall be continuing, the Collateral Agent may apply any proceeds of such insurance which may be received by it toward payment of the Articles which is adverse Liabilities, whether or not due, in such order of application as the Collateral Agent may determine pursuant to the holders terms of the SecuritiesCredit Agreement), and provided further that no consent of such policies or certificates thereof shall, if the Trustee nor consent Collateral Agent so requests, be deposited with or affirmative vote of any holder of Securities shall be required in relation furnished to any amendment which the Collateral Agent; (i) does not adversely affect will take such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (j) will promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against the interests ownership, operation, possession, maintenance or use of its Equipment and other Goods; (k) will, upon the reasonable request of the Collateral Agent, (i) with respect to any holder certificate of Securities title evidencing Equipment owned by the Guarantor, on and after the date on which the Guarantor owns more than $100,000 of Equipment in the aggregate evidenced or covered by certificates of title, cause to be noted on the applicable certificate, the security interest of the Collateral Agent in the Equipment covered thereby, and (ii) deliver the applicable certificates to the Collateral Agent or its designee; (l) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (m) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; (n) will promptly notify the Collateral Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of (1) Deposit Accounts, (2) Investment Property, if the aggregate amount or value of Investment Property acquired by the Guarantor after the date hereof exceeds $250,000, (3) Letter-of-Credit Rights if the aggregate amount or value of Letter-of-Credit Rights acquired by the Guarantor after the date hereof exceeds $250,000, or (4) Electronic Chattel Paper if the aggregate amount or value of Electronic Chattel Paper acquired by the Guarantor after the date hereof exceeds $250,000, and, upon the reasonable request of the Collateral Agent subsequent to the Collateral Agent's receipt of the aforementioned notice, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Collateral Agent to deliver to the Collateral Agent control with respect to such Collateral; (o) will promptly notify the Collateral Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments if the aggregate amount or value of Documents or Instruments acquired by the Guarantor after the date hereof exceeds $250,000, and, upon the request of the Collateral Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Collateral Agent to deliver to the Collateral Agent possession of such Documents which are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Collateral Agent; (p) with respect to Collateral in the possession of a third party, other than Certificated Securities and Goods covered by a Document, will use its commercially reasonable best efforts to obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Collateral Agent; (q) will promptly notify the Collateral Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim after the date hereof against any third party, and, upon the request of the Collateral Agent, will promptly enter into an amendment to cure this Agreement and do such other acts or things deemed appropriate by the Collateral Agent to give the Collateral Agent a security interest in such Commercial Tort Claim; (r) further agrees to take other action reasonably requested by the Collateral Agent to insure the attachment, - 9 - perfection of, and the ability of the Collateral Agent to enforce, the security interests in any ambiguityand all of the Collateral including, omission or defect or without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to correct or supplement the extent, if any, that the Guarantor's signature thereon is required therefor, (ii) complying with any provision of Article 9 of the Articles which may be inconsistent with any other provision of the Articles statute, regulation or which is otherwise defective, or to make any other provisions with respect to matters arising under the Articles as the Issuer, the Guarantor and the Trustee may deem necessary or desirable, in each case which does not adversely affect the interests of the holders of the Securities.
(b) The Guarantor, for so long as any Securities remain outstanding shall use its reasonable efforts to ensure that the Issuer will not be an “investment company” within the meaning of the Investment Company Act or a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 treaty of the United States Internal Revenue Code as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of 1986the Collateral Agent to enforce, the security interests in such Collateral, (iii) obtaining governmental and other third-party consents and approvals, including without limitation, any consent of any licensor, lessor or other Person obligated on Collateral, (iv) using commercially reasonable best efforts, obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Collateral Agent, and (v) taking all actions required by the UCC in effect from time to time or by other law, as amended.
applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction, (cs) The Guarantor agrees to use will not change its state of incorporation or organization or Type of Organization; (t) will not change its legal name without providing the Collateral Agent with at least 30 days' prior written notice; and (u) will reimburse the Collateral Agent for all reasonable efforts to ensure that all corporate stepsexpenses, including obtaining shareholder approvals if necessaryreasonable attorney's fees and charges, have been taken for incurred by the allotment and issue Collateral Agent in seeking to collect or enforce any rights in respect of the Ordinary Shares Guarantor's Collateral. Any reasonable expenses incurred in protecting, preserving or ADSsmaintaining any Collateral shall be borne by the Guarantor. Whenever a Default shall be existing, free the Collateral Agent shall have the right to bring suit to enforce any or all of pre-emptive rights the Intellectual Property or licenses thereunder, in which event the Guarantor shall at the request of the Collateral Agent do any and all lawful acts and execute any and all proper documents required by the Collateral Agent in aid of such enforcement and the Guarantor shall promptly, upon demand, reimburse and indemnify the Collateral Agent for all costs and expenses (including reasonable attorney's fees) incurred by the Collateral Agent in the exercise of Conversion and Exchange Rights.
(d) The Guarantor agrees to pay all stamp, stamp duty reserve or other issuance or documentary taxes or duties payable in its rights under this Section 6. Notwithstanding the Cayman Islandsforegoing, the United Kingdom Collateral Agent shall have no obligation or liability regarding the United States in connection with (A) the issuance of Ordinary Shares upon Collateral or any Conversion and Exchange and (B) their deposit with the ADR Depositary against issuance of American depositary receipts (the “ADRs”) evidencing American depositary shares representing the Ordinary Shares, provided, however, that the Guarantor shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of Preference Shares, Ordinary Shares or ADSs in a name other than the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Issuer or the Guarantor the amount of any such tax or dutythereof by reason of, or has established to the satisfaction of the Issuer and the Guarantor that such tax or duty has been paid. Thus Guarantor will not be obligated to payarising out of, and each relevant Holder of Preference Shares must pay, all other taxes arising in connection with such exchangethis Agreement.
(e) The Guarantor agrees, as a consequence of the succession of Holdings as the publicly listed company of the corporate group, to assign to Holdings its obligations under Section 7.02(e) of the Original Guarantee.
Appears in 1 contract
Samples: Guarantor Security Agreement (Whitehall Jewelers Holdings, Inc.)
Agreements of the Guarantor. The Guarantor (a) The will, upon request of the Collateral Agent, execute and deliver to the Collateral Agent or authorize the recordation of such financing statements, amendments thereto, and other documentation including, but not limited to, Supplemental Documentation (and pay the cost of filing or recording the same in all public offices reasonably deemed appropriate by the Collateral Agent) and do such other acts and things (including, delivery to the Collateral Agent of any Documents, Instruments or Certificated Securities which constitute Collateral), all as the Collateral Agent deems necessary in order to establish and maintain a valid attached and first priority perfected security interest (subject to Permitted Encumbrances entitled to priority under applicable law) in the Collateral (free of all other liens, claims and rights of third parties whatsoever, other than Permitted Encumbrances) to secure payment of the Liabilities and the Guarantor hereby agrees:
irrevocably authorizes the Collateral Agent at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto that (i) thatindicate the Collateral (y) as all assets of the Guarantor or words of similar effect, regardless of whether any particular asset comprised in the event Collateral falls within the scope of failure of the Issuer to perform any of its obligations or to enforce when due any of the rights of the Issuer in respect of the exercise of any Conversion and Exchange Rights, the issue of any Preference Shares on any such exercise and the exchange of Preference Shares for Ordinary Shares or ADSs pursuant to the exercise of Conversion and Exchange Rights, in each case in accordance with the Articles and as referred to in the terms of the Securities and the Indenture, the Guarantor will procure the performance by the Issuer of all such obligations and the enforcement by the Issuer of all such rights;
(ii) to assign to Holdings its obligations under Section 7.02(a)(ii) of the Original Guarantee, as a consequence of the succession of Holdings as the publicly listed company of the corporate group; and
(iii) that, while any Security remains Outstanding, it will not consent to, and will procure that the Issuer will not make, any amendment to Article 9 of the Articles which would varyUCC of the jurisdiction wherein such financing statement or amendment is filed, abrogate or modify (z) as being of an equal or lesser scope or within greater detail, and (ii) contain any other information required by Section 5 of Article 9 of the rights attaching UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (A) whether the Guarantor is an organization, the Type of Organization and the Organization ID Number issued to the Preference Shares save with Guarantor and (aB) in the consent case of a financing statement filed as a fixture filing or indicating Collateral to be extracted collateral or timber to be cut, a sufficient description of real property to which the Trustee or Collateral relates, the Guarantor further ratifies and affirms its authorization for any financing statements and/or amendments thereto, filed by the Collateral Agent in any jurisdiction prior to the date of this Agreement; (b) (1unless such Inventory or other Collateral is in transit in the ordinary course of business and remains insured at all times, will keep all its Inventory and other tangible Collateral at, and will not maintain any place of business at any location other than, its address(es) shown on Schedules I and II hereto or at such other addresses of which the written consent of Guarantor shall have given the holders of Collateral Agent not less than 10 days' prior written notice; (c) will keep its records concerning the Non-Tangible Collateral in such a majority in principal amount manner as will enable the Collateral Agent or its designees to determine at any time the status of the Outstanding Securities by Non-Tangible Collateral; (d) will furnish the Act of said holders delivered Collateral Agent such information concerning the Guarantor, the Collateral and, to the Issuerextent in its possession and not subject to confidentiality agreements, the Account Debtors as the Collateral Agent may from time to time reasonably request; (e) will permit the Collateral Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice during the existence of a Default) to inspect the Guarantor's Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and other papers in the possession of the Guarantor pertaining to the Collateral and the Trustee; or (2) by Account Debtors, and will, upon request of the adoption Collateral Agent during the existence of a resolutionDefault, at a meeting deliver to the Collateral Agent all of holders of the Outstanding Securities at which a quorum is present, by the holders of a majority in principal amount of the Outstanding Securities represented at such meeting, records and papers; provided, however, that with respect to the consent or affirmative vote foregoing, the Guarantor, prior to the occurrence and continuance of a Default, shall only reimburse the Collateral Agent for the cost and expense associated with one field examination and one fixed asset appraisal during each calendar year; (f) will, upon request of the holder Collateral Agent, stamp on its records concerning the Collateral, and add on all Chattel Paper and Instruments constituting a portion of each Outstanding Security adversely affected the Collateral, a notation, in form satisfactory to the Collateral Agent, of the security interest of the Collateral Agent hereunder; (g) except for the sale or lease of Inventory in the ordinary course of its business, will not sell, lease, assign or create or permit to exist any Lien on any Collateral other than Permitted Encumbrances; (h) will at all times keep all of its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, including, but not limited to marine cargo insurance, acceptable to the Collateral Agent, and cause all such policies to provide that loss thereunder shall be required before payable to the Collateral Agent as its interest may appear (it being understood that (A) so long as no Default shall be continuing, the Collateral Agent shall deliver any amendment is made proceeds of such insurance which may be received by it to Article 9 the Guarantor and (B) whenever a Default shall be continuing, the Collateral Agent may apply any proceeds of such insurance which may be received by it toward payment of the Articles which is adverse Liabilities, whether or not due, in such order of application as the Collateral Agent may determine pursuant to the holders terms of the SecuritiesCredit Agreement), and provided further that no consent of such policies or certificates thereof shall, if the Trustee nor consent Collateral Agent so requests, be deposited with or affirmative vote of any holder of Securities shall be required in relation furnished to any amendment which the Collateral Agent; (i) does not adversely affect will take such actions as are reasonably necessary to keep its Equipment in good repair and condition and in good working order, ordinary wear and tear excepted; (j) will promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against the interests ownership, operation, possession, maintenance or use of its Equipment and other Goods; (k) will, upon the reasonable request of the Collateral Agent, (i) with respect to any holder certificate of Securities title evidencing Equipment owned by the Guarantor, on and after the date on which the Guarantor owns more than $100,000 of Equipment in the aggregate evidenced or covered by certificates of title, cause to be noted on the applicable certificate, the security interest of the Collateral Agent in the Equipment covered thereby, and (ii) deliver the applicable certificates to the Collateral Agent or its designee; (l) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (m) except as listed on Schedule VI, will keep all of the tangible Collateral in the United States; (n) will promptly notify the Collateral Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of (1) Deposit Accounts, (2) Investment Property, if the aggregate amount or value of Investment Property acquired by the Guarantor after the date hereof exceeds $250,000, (3) Letter-of-Credit Rights if the aggregate amount or value of Letter-of-Credit Rights acquired by the Guarantor after the date hereof exceeds $250,000, or (4) Electronic Chattel Paper if the aggregate amount or value of Electronic Chattel Paper acquired by the Guarantor after the date hereof exceeds $250,000, and, upon the reasonable request of the Collateral Agent subsequent to the Collateral Agent's receipt of the aforementioned notice, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Collateral Agent to deliver to the Collateral Agent control with respect to such Collateral; (o) will promptly notify the Collateral Agent in writing upon acquiring or otherwise obtaining any Collateral after the date hereof consisting of Documents or Instruments if the aggregate amount or value of Documents or Instruments acquired by the Guarantor after the date hereof exceeds $250,000, and, upon the request of the Collateral Agent, will promptly execute such other documents, and do such other acts or things deemed appropriate by the Collateral Agent to deliver to the Collateral Agent possession of such Documents which are negotiable and Instruments, and, with respect to nonnegotiable Documents, to have such nonnegotiable Documents issued in the name of the Collateral Agent; (p) with respect to Collateral in the possession of a third party, other than Certificated Securities and Goods covered by a Document, will use its commercially reasonable best efforts to obtain an acknowledgment from the third party that it is holding the Collateral for benefit of the Collateral Agent; (q) will promptly notify the Collateral Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim after the date hereof against any third party, and, upon the request of the Collateral Agent, will promptly enter into an amendment to cure this Agreement and do such other acts or things deemed appropriate by the Collateral Agent to give the Collateral Agent a security interest in such Commercial Tort Claim; (r) further agrees to take other action reasonably requested by the Collateral Agent to insure the attachment, perfection of, and the ability of the Collateral Agent to enforce, the security interests in any ambiguityand all of the Collateral including, omission or defect or without limitation, (i) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to correct or supplement the extent, if any, that the Guarantor's signature thereon is required therefor, (ii) complying with any provision of Article 9 of the Articles which may be inconsistent with any other provision of the Articles statute, regulation or which is otherwise defective, or to make any other provisions with respect to matters arising under the Articles as the Issuer, the Guarantor and the Trustee may deem necessary or desirable, in each case which does not adversely affect the interests of the holders of the Securities.
(b) The Guarantor, for so long as any Securities remain outstanding shall use its reasonable efforts to ensure that the Issuer will not be an “investment company” within the meaning of the Investment Company Act or a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 treaty of the United States Internal Revenue Code as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of 1986the Collateral Agent to enforce, the security interests in such Collateral, (iii) obtaining governmental and other third-party consents and approvals, including without limitation, any consent of any licensor, lessor or other Person obligated on Collateral, (iv) using commercially reasonable best efforts, obtaining waivers from mortgagees and landlords in form and substance satisfactory to the Collateral Agent, and (v) taking all actions required by the UCC in effect from time to time or by other law, as amended.
applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction, (cs) The Guarantor agrees to use will not change its state of incorporation or organization or Type of Organization; (t) will not change its legal name without providing the Collateral Agent with at least 30 days' prior written notice; and (u) will reimburse the Collateral Agent for all reasonable efforts to ensure that all corporate stepsexpenses, including obtaining shareholder approvals if necessaryreasonable attorney's fees and charges, have been taken for incurred by the allotment and issue Collateral Agent in seeking to collect or enforce any rights in respect of the Ordinary Shares Guarantor's Collateral. Any reasonable expenses incurred in protecting, preserving or ADSsmaintaining any Collateral shall be borne by the Guarantor. Whenever a Default shall be existing, free the Collateral Agent shall have the right to bring suit to enforce any or all of pre-emptive rights the Intellectual Property or licenses thereunder, in which event the Guarantor shall at the request of the Collateral Agent do any and all lawful acts and execute any and all proper documents required by the Collateral Agent in aid of such enforcement and the Guarantor shall promptly, upon demand, reimburse and indemnify the Collateral Agent for all costs and expenses (including reasonable attorney's fees) incurred by the Collateral Agent in the exercise of Conversion and Exchange Rights.
(d) The Guarantor agrees to pay all stamp, stamp duty reserve or other issuance or documentary taxes or duties payable in its rights under this Section 6. Notwithstanding the Cayman Islandsforegoing, the United Kingdom Collateral Agent shall have no obligation or liability regarding the United States in connection with (A) the issuance of Ordinary Shares upon Collateral or any Conversion and Exchange and (B) their deposit with the ADR Depositary against issuance of American depositary receipts (the “ADRs”) evidencing American depositary shares representing the Ordinary Shares, provided, however, that the Guarantor shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of Preference Shares, Ordinary Shares or ADSs in a name other than the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Issuer or the Guarantor the amount of any such tax or dutythereof by reason of, or has established to the satisfaction of the Issuer and the Guarantor that such tax or duty has been paid. Thus Guarantor will not be obligated to payarising out of, and each relevant Holder of Preference Shares must pay, all other taxes arising in connection with such exchangethis Agreement.
(e) The Guarantor agrees, as a consequence of the succession of Holdings as the publicly listed company of the corporate group, to assign to Holdings its obligations under Section 7.02(e) of the Original Guarantee.
Appears in 1 contract
Samples: Guarantor Security Agreement (Whitehall Jewelers Holdings, Inc.)
Agreements of the Guarantor. (a) The Guarantor hereby agrees:
(i) that, in the event of failure of the Issuer to perform any of its obligations or to enforce when due any of the rights of the Issuer in respect of the exercise of any Conversion and Exchange Rights, the issue of any Preference Shares on any such exercise and the exchange of Preference Shares for Ordinary Shares or ADSs pursuant to the exercise of Conversion and Exchange Rights, in each case in accordance with the Articles and as referred to in the terms of the Securities and the Indenture, the Guarantor will procure the performance by the Issuer of all such obligations and the enforcement by the Issuer of all such rights;:
(ii) not to assign alter its obligation pursuant to Holdings a bilateral contract between the Issuer and the Guarantor to issue Ordinary Shares or ADSs to holders of Preference Shares in order that the Issuer might meet its exchange obligations under Section 7.02(a)(ii) in respect of the Original Guarantee, as a consequence of Preference Shares in accordance with the succession of Holdings as the publicly listed company of the corporate groupArticles; and
(iii) that, while any Security remains Outstanding, it will not consent to, and will procure that the Issuer will not make, any amendment to Article 9 of the Articles which would vary, abrogate or modify the rights attaching to the Preference Shares save with (a) the consent of the Trustee or (b) )
(1) the written consent of the holders of not less than a majority in principal amount of the Outstanding Securities by the Act of said holders delivered to the Issuer, the Guarantor and the Trustee; or (2) by the adoption of a resolution, at a meeting of holders of the Outstanding Securities at which a quorum is present, by the holders of a majority in principal amount of the Outstanding Securities represented at such meeting, provided, however, that the consent or affirmative vote of the holder of each Outstanding Security adversely affected shall be required before any amendment is made to Article 9 of the Articles which is adverse to the holders of the Securities, and provided further that no consent of the Trustee nor consent or affirmative vote of any holder of Securities shall be required in relation to any amendment which (i) does not adversely affect the interests of any holder of Securities or (ii) is to cure any ambiguity, omission or defect or to correct or supplement any provision of Article 9 of the Articles which may be inconsistent with any other provision of the Articles or which is otherwise defective, or to make any other provisions with respect to matters arising under the Articles as the Issuer, the Guarantor and the Trustee may deem necessary or desirable, in each case which does not adversely affect the interests of the holders of the Securities.
(b) The Guarantor, for so long as any Securities remain outstanding shall use its reasonable efforts to ensure that the Issuer will not be an “"investment company” " within the meaning of the Investment Company Act or a Passive Foreign Investment Company (“"PFIC”") within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended.
(c) The Guarantor agrees to use all reasonable efforts to ensure that all corporate steps, including obtaining shareholder approvals if necessary, have been taken for the allotment and issue of the Ordinary Shares or ADSs, free of pre-emptive rights upon the exercise of Conversion and Exchange Rights.;
(d) The Guarantor agrees to pay all stamp, stamp duty reserve or other issuance or documentary taxes or duties payable in the Cayman Islands, the United Kingdom or the United States in connection with (A) the issuance of Ordinary Shares upon any Conversion and Exchange and (B) their deposit with the ADR Depositary against issuance of American depositary receipts (the “"ADRs”") evidencing American depositary shares representing the Ordinary Shares, provided, however, that the Guarantor shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of Preference Shares, Ordinary Shares or ADSs in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Issuer or the Guarantor the amount of any such tax or duty, or has established to the satisfaction of the Issuer and the Guarantor that such tax or duty has been paid. Thus The Guarantor will not be obligated to pay, and each relevant Holder of Preference Shares must pay, all other taxes arising in connection with such exchange.
(e) The Guarantor agreesagrees that it will, as a consequence at all times while Securities are outstanding, save with either (i) the written consent of the succession Holders of Holdings as the publicly listed company not less than a majority in principal amount of the corporate groupOutstanding Securities, by Act of said Holders delivered to assign the Issuer, the Company and the Trustee; (ii) the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of a majority in principal amount of the Outstanding Securities represented at such meeting; or (iii) the consent of the Trustee where, in the opinion of the Trustee, it is not materially prejudicial to Holdings the interests of the Holders of the Securities to give such approval:
(A) at all times keep available for issue free from pre-emptive rights out of its obligations under Section 7.02(eauthorized but unissued capital such number of Ordinary Shares as would enable the obligation of the Issuer to procure that Preference Shares issued upon conversion of the Securities be exchanged for Ordinary Shares in accordance with the Memorandum and Articles of Association of the Issuer to be satisfied in full;
(B) not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class of equity share capital carrying any rights which are more favorable than such rights except that this nothing in this clause (B) shall prevent (1) the issue of equity share capital to employees (including directors and executive officers) of the Original Guarantee.Company or any of its Subsidiaries or associated undertakings pursuant to any employees' share plan or option plan; (2) any consolidation or subdivision of the Ordinary Shares; (3) any modification of such rights which is not materially prejudicial to the interests of the Holders of the Securities; (4) any alteration to the Articles made in connection with any matters referred to in this clause (B) or supplemental or incidental thereto; (5) any issue of Ordinary Shares in connection with and upon (x) exchange of the exchangeable shares of Shire Acquisition Inc. or the remaining outstanding shares of Roberts Pharmaceutical Corporation or (y) the conversion of thx xxxxxured convertible zero coupon loan note due to Arenol Corporation; or (6) any issue of equity share capital where the issue of such equity share capital results (or would, but for the fact that the adjustment would be less than one percent of the Exchange Ratio or that the relevant issue were at less than 95% of the current market price per Ordinary Share on the relevant Trading Day, result) in an adjustment to the Exchange Ratio; and
(C) not reduce its issued share capital, share premium account or capital redemption reserve or any uncalled liability in respect thereof except (1) pursuant to the terms of issue of the relevant share capital; (2) by means of a purchase or redemption; (3) as permitted by Section 130(2) of the Companies Act 1985;
Appears in 1 contract
Samples: Preference Shares Guarantee Agreement (Shire Pharmaceuticals Group PLC)
