Conditions of Utilization. 3.1 The Borrower may not utilize the Facility unless the following conditions precedent have been fulfilled:
(i) This Agreement has been duly executed and come into full force and effect; and
(ii) the guarantee agreement referred to in clause 11.1(i) (the “Guarantee Agreement”) has been duly signed and come into full force and effect; and
(iii) the rights and interest of the Lender under the Guarantee Agreement (together with this Agreement the “Finance Documents”) have been created in a valid, binding and enforceable manner; and
(iv) the representations and warranties set forth in clause 9.1 are true and correct; and
(v) no event or circumstance as specified in clause 12.1 (a “Default”), which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an event of default as defined in clause 12.1 (an “Event of Default”), has occurred or threatens to occur; and
(vi) the Lender has received the documents and other evidence listed in schedule 1, and it has found such documents in form and substance acceptable and satisfactory to it.
Conditions of Utilization. The Borrower may utilize this Credit Facility once and as long as the following Conditions Precedent are fulfilled:
(1) In accordance with German-Money-Laundering Act (“Geldwäschegesetz”, hereafter the “GwG”) all information required by law (§ 1 subpara. 6 GwG) regarding the beneficial owner/s and the Declaration of the Borrower according to the GwG with regard to this Credit Facility Agreement have been submitted to the Bank.
(2) Up-to-date certified (beglaubigt) extract from the Commercial Register (Handelsregisterauszug), its articles of association (Satzung), certified by the commercial register as of a recent date, or partnership agreement (Gesellschaftsvertrag), copies of any by-laws as well as a list of shareholders (Gesellschafterliste) (if applicable), and
(3) The agreed collateral is in full force and effect, and
(4) No event of default is outstanding which constitutes or, with the expiry of a grace period and/or the giving of a notice would constitute the right to terminate the Credit Facility Agreement for reasonable cause, and
(5) The Borrower is not in default with any obligation vis-à-vis the Bank, and
(6) Legal opinion covering the legal validity and enforceability of the “Commitment to limit intercompany claims and obligations („Abschottungserklärung“) and to suspend dividend payments in the event of an equity deterioration („Ausschüttungsregelung“) which constitutes Attachment 1 to this Credit Facility Agreement. The Bank may allow utilization without the above conditions being satisfied. The obligation of the Borrower to comply with the conditions of utilization remains unaffected hereby unless the Bank has definitely and expressly waived compliance with certain conditions in writing.
Conditions of Utilization. 4.1 Initial conditions precedent
Conditions of Utilization. Notwithstanding any other terms of this Agreement, provided that the Company has prior to the first Drawdown under this Agreement performed its delivery obligations pursuant to Section 5 (such requirement to qualify as a condition to the first Drawdown), each Drawdown shall be subject to the satisfaction of the following conditions as of the relevant Drawdown Notice Date and Drawdown Date:
(a) The Drawdown Notice has been submitted outside a Drawdown Restriction Period and in any case in compliance with this Agreement;
(b) The Company's representations in this Agreement are in all material respects true as of the Drawdown Date (save any qualification agreed in writing by the Lender), unless the applicable representation is made as of a specific date, in which case the representation shall have been true and correct in all material respects as of such specific date;
(c) (i)(x) The Treasury Shares (if any) to be delivered or (y) the Conditional Shares (if any) to be issued as Conversion Shares are admitted to listing and trading on the SIX, or (ii) with respect to Authorized Shares or Conditional Shares (with respect to which no self-executing listing prospectus exemption applies based on applicable Laws) to be issued as Conversion Shares, a listing application has been filed with the competent listing authority, which can reasonably be expected to be approved (to the extent necessary) on or before the date of the delivery of a Conversion Notice by the Lender under the terms of this Agreement;
(d) No obstacle can be reasonably expected that the Class B Shares issuable or deliverable upon the delivery of a Conversion Notice by the Lender will be listed and become tradable without any restrictions on the Principal Market;
(e) The Company has not received any notice by the Principal Market threatening the continued trading of the Class B Shares on the Principal Market;
(f) The Company has not requested that the Principal Market on which the Shares to be delivered or issued are listed and traded discontinue listing and/or trading of the Shares on the Principal Market,
(g) No Default or Event of Default under this Agreement has occurred and continues uncured under the terms of this Agreement;
(h) The consummation of the transactions contemplated by this Agreement and the funding of the Loan (i) are not prohibited by, and do not violate, any Laws applicable to the Company, (ii) are not enjoined (temporarily or permanently) under, or prohibited by or contrary to, a...
Conditions of Utilization. For the first Utilization of the Tranche A Facility Commitment, the Borrower may deliver the Utilization Request after (i) the Lender has received all of the documents or evidence listed in items 1, 3, 4, 5 and 6(a) of Schedule 1 (Conditions Precedent) and (ii) the Borrower has received all of the documents or evidence listed in item 2 of Schedule 1 (Conditions Precedent). The Lender shall notify the Borrower promptly upon receipt of such documents and evidence. Upon receipt by the Lender (or the Borrower, as the case may be) of the documents and evidence under this Clause 4.1, the Lender shall make available to the Borrower the Tranche A Loan in accordance with the Utilization Request. For (i) each subsequent Utilization after the Initial Utilization Date in respect of the Tranche A Facility and (ii) each Utilization of the Tranche B Facility Commitment, the Borrower may deliver the applicable Utilization Request after the Lender has received the document proof listed in items 5 and 6 of Schedule 1 (Conditions Precedent) for that Utilization (for item 6(b) and 6(c), to the extent relevant and applicable for such Utilization). The Lender shall notify the Borrower promptly upon receipt of such document proof and make available to the Borrower a Loan directly or through IQ HK in accordance with such Utilization Request.
Conditions of Utilization. 3.1 The Borrower may not deliver a utilization request for the drawing of the Loan unless the following conditions precedent have been fulfilled:
(i) This Agreement has been duly executed and come into full force and effect; and
(ii) the guarantee agreement referred to in clause 11.1 (i) (the “Guarantee Agreement”) and the share pledge agreement referred to in clause 11.1 (ii) (the Pledge Agreement”) have been duly signed and come into full force and effect; and
(iii) the security rights and interest of the Lender under the Guarantee Agreement and the Pledge Agreement (collectively the “Security Agreements”) have been created and perfected in a valid, binding and enforceable manner; and
(iv) the representations and warranties set forth in clause 9.1 are true and correct; and
(v) no event or circumstance as specified in clause 12.1 (a “Default”), which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an event of default as defined in clause 12.1 (an “Event of Default”), has occurred or threatens to occur; and
(vi) the Lender has received the documents and other evidence listed in schedule 1, and it has found such documents in form and substance acceptable and satisfactory to it; and
(vii) an agreement between the Lender and OeKB for the refinancing of utilizations under Facility B (the “OeKB Refinancing Agreement”) has been duly executed and come into full force and effect; and
(viii) the Lender has received from OeKB all funds under the OeKB Refinancing Agreement; and
(ix) the commitment by OeKB no. 23.765 dated 8 June 2006 to guarantee bills of exchange by “aval” in the amount of EUR 9,105,000 (the “OeKB Commitment”; this Agreement, the Security Agreements, and the OeKB Commitment are hereinafter collectively referred to as the “Finance Documents”) has been duly executed and come into full force and effect; and
(x) the Lender has received two (2) bills of exchange issued by the Lender, drawn on and accepted by the Borrower, and guaranteed by OeKB pursuant to the OeKB Commitment, one in the amount of EUR 2,731,500 due on 31 March 2008, and the other in the amount of EUR 6,373,500 due on 31 August 2011; and
(xi) the Lender has received evidence that the agreements regarding the acquisition of shares as referred to in clause 2.2 have been duly executed and come into full force and effect, and that the acquisition price in an aggregate amo...
Conditions of Utilization. 4.1 Initial conditions precedent
(a) The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to the Loan if on or before the date on which the Utilization Request is delivered, the Facility Agent has received all of the documents and other evidence listed in Part IA of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting reasonably) unless the Facility Agent (acting on the instructions of all the Mandated Lead Arrangers) has waived receipt of any such document or other evidence listed in Part IA of Schedule 2 (Conditions Precedent). The Facility Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.
(b) Other than to the extent that a Mandated Lead Arranger notifies the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorize (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
Conditions of Utilization. 4.1 Initial conditions precedent
4.1.1 The Borrower may not deliver a Utilization Request unless (a) no applicable law or regulation shall restrain, prevent or, in the reasonable judgment of the Lender, impose materially adverse conditions upon the transactions contemplated hereby; (b) no circumstance, event or occurrence has taken place since December 31, 2006 that has or would be reasonably likely to have a Material Adverse Effect; (c) there shall not have occurred any circumstance, change or condition in the Loans syndication, financial or capital markets generally, nor a material adverse circumstance, change or condition in the economy of Brazil or in the market for loans to and debt securities of issuers in Brazil, since December 31, 2006, that, in the judgment of the Lender, could reasonably be expected to materially impair the syndication of the Facility contemplated hereby; and (d) the Lender has received all of the documents and other evidence listed in SCHEDULE 1 (Conditions precedent to initial utilization) in form and substance satisfactory to the Lender.
4.1.2 The Lender has entered into Participation Agreements with Participants for the acquisition by them of Participations in an aggregate amount equal to the full amount of the B Loan and those Participation Agreements are in full force and effect.
4.1.3 Notwithstanding any other provision of this Agreement, the Lender is not obliged to make:
(a) any B Loan Utilization, except to the extent that the Lender shall have received from the Participants, in immediately available funds, funds for that B Loan Utilization in accordance with the Participation Agreement; and
(b) any Utilization except pro rata from the A Loan and the B Loan in proportion to their respective amounts.
Conditions of Utilization. The Borrower may utilize this Credit Facility once the following Conditions Precedent are fulfilled and none of them has been revoked or cancelled and as long as no event of default is outstanding which constitutes or, with the expiry of a grace period and/or the giving of a notice may constitute the right to terminate the Credit Facility Agreement for reasonable cause:
Conditions of Utilization. The Borrower may utilize this Credit Facility once the following Conditions Precedent are fulfilled and none of them has been revoked or cancelled and as long as no event of default is outstanding which constitutes or, with the expiry of a grace period and/or the giving of a notice may constitute the right to terminate the Credit Facility Agreement for reasonable cause:
(1) The Bank has received all documents and evidence listed below in form and content satisfactory to the Bank and none of these turned out to be wrong:
(a) All information required by law (§ 1 subpara. 6 of the German Money-Laundering Act (GwG)) regarding the beneficial owner/s and the Declaration of the Borrower according to the GWG with regard to this Credit Facility Agreement.
(b) The agreed collateral as set out under §7 is in full force and effect.
(2) The Borrower is not in default with any obligation vis-à-vis the Bank set out in §9 GENERAL UNDERTAKINGS or other material obligation under this Credit Facility Agreement. The Bank may allow utilization without the above conditions being satisfied. The obligation of the Borrower to comply with the conditions of utilization remains unaffected hereby unless the Bank has definitely and expressly waived compliance with certain conditions in writing.
