Conditions Precedent and Subsequent. 19.01 Notwithstanding the provisions of Clause 5, the agreement of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction is subject to the condition that the Lender shall have received not later than the Drawdown Date the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers: 19.01.01 a copy, certified as a true copy by the secretary of each Corporate Security Party of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto; 19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01; 19.01.03 certificates or other evidence satisfactory to the Lender, in its sole discretion of the existence and good standing of each Security Party; 19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof; 19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel; 19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and the other Finance Documents; 19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender; 19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), as the Lender may in its absolute discretion require; 19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges; 19.01.10 payment of the fees in accordance with Clause 26; 19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38; 19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than as contemplated herein; 19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26; 19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement; 19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class; 19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be) free of recommendations or other conditions affecting her class; 19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager; 19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry; 19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower; 19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower; 19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower; 19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower; 19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate; 19.01.24 the Guarantee duly executed by the Guarantor; 19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s); 19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel; 19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof; 19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender; 19.01.29 such further documents and evidence as the Lender may hereafter request. 19.02 The agreement of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Date, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers 19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process; 19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lender; and 19.02.03 such further documents and evidence as the Lender may hereafter request. 19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions: 19.03.01 That both at the date of the Notice of Drawdown and on the Drawdown Date: (i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and (ii) the representations and warranties of the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference to the facts then subsisting; and (iii) there is not a Material Adverse Effect in relation to any one or more of the Security Parties or any other member of the Group; and
Appears in 2 contracts
Samples: Financial Agreement (EuroDry Ltd.), Financial Agreement (Euroseas Ltd.)
Conditions Precedent and Subsequent. 19.01 Notwithstanding the provisions of Clause 5, the agreement 3.1 The amendment and restatement of the Lender to permit Original Loan Agreement provided for in Clause 2 is conditional upon and shall not be effective unless and until the drawdown of the Facility and/or the entering into any Designated Transaction is subject to the condition that the Lender shall have Agent has received not later than the Drawdown Date the following documents or evidence in form and substance satisfactory to the Lender and its legal advisersit:
19.01.01 a copy, certified as a true copy 3.1.1 on the date of this Deed:
(a) one (1) counterpart of this Deed duly executed by the secretary of each Corporate Security Party of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party theretoparties hereto;
19.01.02 (b) a written confirmation from the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence satisfactory to the Lender, in its sole discretion of the existence and good standing of New Process Agent that it will act for each Security Party;
19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), Guarantor as the Lender may agent for service of process in its absolute discretion requireEngland in respect of this Deed;
19.01.09 evidence that (c) the Earnings Account has been duly opened following corporate documents in respect of each of the Borrower and the Guarantor (together the “Relevant Parties”):
(i) Certified Copies of any consents required from any ministry, governmental, financial or other authority for the execution of and performance by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free respective Relevant Party of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38this Deed or any document to be executed pursuant hereto or if no such consents are required a certificate from a duly appointed officer of the Relevant Party to this effect confirming that no such consents are required;
19.01.12 evidence that (ii) notarially attested secretary’s certificate of each of the Ship has been duly delivered to Relevant Parties:
(1) attaching a copy of its Certificate of Incorporation and accepted Memorandum of Association and Bye-Laws (or equivalent constitutional documents) which do not prohibit the entering into of the transactions contemplated in this Deed;
(2) giving the names of its present officers and directors;
(3) setting out specimen signatures of such persons as are authorised by the Borrower Relevant Party to sign documents or otherwise undertake the performance of that Relevant Party’s obligations under this Deed;
(4) giving the legal owner of its shares and that she is the number of such shares held;
(5) attaching copies of resolutions passed at duly registered in the ownership convened meetings of the Borrower at the relevant ships' Registry acceptable by the Lenderdirectors and, free of any Encumbrances otherwise than as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation Agent, the shareholders of each of the Ship on Relevant Parties authorising (as applicable) the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions execution of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation Deed and the ISPS Code Documentation in relation issue of any power of attorney to execute the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender;
19.01.29 such further documents and evidence as the Lender may hereafter request.
19.02 The agreement of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Date, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lendersame; and
19.02.03 such further documents and evidence (6) containing a declaration of solvency as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions:
19.03.01 That both at the date of the Notice certificate of Drawdown the duly appointed officer of the Relevant Party; or (if applicable) certifying that there has been no change to the statements made in his or her secretary’s certificate last provided to the Agent with respect to paragraphs (1), (2), (3), (4) and on (6) of this Clause 3.1.1(c)(ii) and attaching copies of resolutions passed at duly convened meetings of the Drawdown Date:
directors and, if required by the Agent, the shareholders of each of the Relevant Parties authorising (i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and
(iias applicable) the representations execution of this Deed and warranties any document to be executed pursuant hereto and the issue of any power of attorney to execute the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference to the facts then subsistingsame; and
(iii) there is not a Material Adverse Effect in relation the original powers of attorney, if any, issued pursuant to any one or more the resolutions referred to above and notarially attested;
3.1.2 receipt by the Agent of the Security Parties or any other member amendment to the Coface Insurance Policy necessary to reflect the conversion of the GroupLoan to Dollars at a floating rate of interest, together with confirmation of the Agent that the Coface Insurance Policy as amended is in full force and effect;
3.1.3 a Certified Copy of the letters of election dated 27 August 2009 and 24 May 2010 from the Builder to the Borrower and the Guarantor pursuant to which the Intended Delivery Date of the Vessel under the Building Contract is postponed to 17 June 2010;
3.1.4 evidence that all sums owing to the Agent and the Lenders pursuant to Clause 5 of this Deed have been received; and
3.1.5 agreement to the issue of such favourable written legal opinions including by Xxxxxxx Xxxx & Xxxxxxx in respect of Bermuda and Xxxxxxxxxx Xxxxxxx in respect of England in such form as the Agent may require relating to all aspects of the transactions contemplated hereby governed by any applicable law, PROVIDED THAT no Event of Default has occurred and is continuing on the Third Restatement Date (subject to Clause 3.3).
3.2 The Borrower shall pay to each of the Lenders within three (3) Business Days of the execution of this Deed by the Agent and the Lenders a non-refundable fee of [*] in accordance with the amendment or waiver fee letter dated 1 April 2009 between the Agent, the Borrower and the Guarantor. Notwithstanding any provision of this Deed, the Original Loan Agreement or the Loan Agreement to the contrary, no Lender shall be required to share with the other Lenders and/or the Agent any such amendment fee received.
3.3 If the Agent in accordance with clause 20 of the Original Loan Agreement decides to permit the amendment and restatement of the Original Loan Agreement hereby without having received all of the documents or evidence referred to in Clause 3.1, the Borrower will nevertheless deliver the remaining documents or evidence to the Agent within fourteen (14) days of the Third Restatement Date (or such other period as the Agent may stipulate) and the amendment and restatement of the Original Loan Agreement as aforesaid shall not be construed as a waiver of the Agent’s right to receive the documents or evidence as aforesaid nor shall this provision impose on the Agent or the Lenders any obligation to permit the amendment and restatement in the absence of such documents or evidence.
Appears in 2 contracts
Samples: Loan Agreement (NCL CORP Ltd.), Loan Agreement (NCL CORP Ltd.)
Conditions Precedent and Subsequent. 19.01 Notwithstanding (a) This Amendment, and the provisions of Clause 5Lender’s consent set forth in Section 5 above, the agreement of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction is subject to the condition that shall be effective when the Lender shall have received not later than an executed original hereof, together with each of the Drawdown Date the following documents or evidence following, each in substance and form and substance satisfactory acceptable to the Lender and in its legal adviserssole discretion:
19.01.01 (i) A Guaranty and the Parent Security Agreement, duly executed by Parent.
(ii) The Certificate of Authority of Parent, which shall include as part of the Certificate or as exhibits to the Certificate, (i) the Resolution of Parent’s Directors and, if required, Owners, authorizing the execution, delivery and performance of the Guaranty of Parent and the Parent Security Agreement, (ii) an Incumbency Certificate containing the signatures of Parent’s Officers or agents authorized to execute and deliver the Guaranty by Parent and the Parent Security Agreement on Parent’s behalf, (iii) Parent’s Constituent Documents, (iv) a copy, certified as a true copy current Certificate of Good Standing or Certificate of Status issued by the secretary of each Corporate Security Party state or other appropriate authority for Parent’s state of organization, certifying that Parent is in good standing and in compliance with all applicable organizational requirements of the resolutions state of organization, and (v) a Secretary’s Certificate of Parent’s secretary or assistant secretary certifying that the Certificate of Authority of Corporate Guarantor and all attached exhibits are true, correct and complete.
(iii) The Collateral Pledge Agreement of Parent pursuant to which Parent, upon consummation of the shareholders Subject Transaction, grants the Lender a security interest in 100% of the shares of stock of the Borrower and resolutions 65% of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto;
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence satisfactory to the Lender, in its sole discretion of the existence and good standing of each Security Party;
19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(sstock of Corsair HK owned by Parent.
(iv) thereof)The Collateral Assignment of Factoring Agreement, as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof and acknowledged by Corsair HK.
(v) Current searches of Parent in appropriate filing offices showing that (i) no Liens have been filed and remain in effect against Parent and Parent’s Collateral except Permitted Liens, and (ii) the relevant charterer(s);Lender shall have has filed all UCC financing statements necessary to perfect the Security Interest in Parent’s Collateral, to the extent the Security Interest is capable of being perfected by filing.
19.01.26 copy (vi) The Acknowledgement and Agreement of the Management AgreementGuarantor attached to this Amendment, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, Xxxxxx X. Xxxx.
(vii) The Acknowledgment and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender;Subordinated Creditors attached to this Amendment, duly executed by each Subordinated Creditor.
19.01.29 such further documents and evidence (viii) Such other matters as the Lender may hereafter requestrequire.
19.02 (b) The agreement effectiveness of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Datethis Amendment, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents Lender’s consent set forth in form and substance satisfactory to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is Section 5 above, shall be further subject to and conditioned upon receipt by the following conditions:
19.03.01 That both at the date Lender, on or before October 8, 2010, of the Notice of Drawdown stock certificates and on the Drawdown Date:
(i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and
(ii) the representations and warranties stock powers representing 100% of the Borrower set out in Clause 17 as well as the representations and warranties shares of stock of the Borrower and 65% of the other Security Parties shares of stock of Corsair HK owned by Parent, as security for the full and prompt payment of Parent’s Debt owed to the Lender in accordance with the Collateral Pledge Agreement. In the event that the condition subsequent set out forth in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference foregoing sentence shall fail to be fulfilled to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation to any one or more satisfaction of the Security Parties Lender on or any other member before the due date indicated, such failure shall constitute an Event of the Group; andDefault.
Appears in 2 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (Corsair Components, Inc.)
Conditions Precedent and Subsequent. 19.01 Notwithstanding 4.1 Conditions to Initial Loans or Letter of Credit. Each Lender's obligation to make the provisions initial Loans and the Issuing Lender's obligations to issue the initial Letter of Clause 5, the agreement of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction Credit is subject to and contingent upon the condition fulfillment of each of the following conditions to the satisfaction of Agent and its counsel:
(a) receipt by Agent, with a counterpart for each Lender, of this Agreement and each of the Loan Documents, all duly executed by Borrowers and/or the other Persons party thereto, acknowledged where required, and in form and substance reasonably satisfactory to Agent in its sole and absolute discretion;
(b) receipt by Agent, with a counterpart for each Lender, of a duly executed opinion of Borrowers' counsel, dated as of the Closing Date, covering the matters set forth in Exhibit 4.1(b) and otherwise in form and substance reasonably satisfactory to Agent in its sole and absolute discretion;
(c) with respect to each Borrower, receipt by Agent, with a counterpart for each Lender, of a Certificate of the Secretary of Borrower, dated as of the Closing Date, certifying (i) the incumbency and signatures of the Responsible Officers of such Borrower who are executing this Agreement and the Loan Documents on behalf of such Borrower; (ii) the By-Laws of such Borrower and all amendments thereto as being true and correct and in full force and effect; and (iii) the resolutions of the Board of Directors of such Borrower as being true and correct and in full force and effect, authorizing the execution and delivery of this Agreement and the Loan Documents, and authorizing the transactions contemplated hereunder and thereunder, and authorizing the Responsible Officers of such Borrower to execute the same on behalf of such Borrower;
(d) receipt by Agent, with a copy for each Lender, of each Borrower's Articles of Incorporation and all amendments thereto, certified by the Secretary of State of its state of organization and dated a recent date prior to the Closing Date;
(e) receipt by Agent, with a copy for each Lender, of a certificate of status and good standing for each Borrower, dated a recent date prior to the Closing Date, showing that such Borrower is in good standing under the Lender laws of the state of its state of organization;
(f) with respect to each Borrower, receipt by Agent, with a counterpart for each Lender, of a certificate signed by the President or a Vice President and/or Chief Financial Officer of such Borrower, dated as of the Closing Date, certifying that (i) both immediately before and immediately after giving effect to the transactions contemplated by this Agreement and the Loan Documents, such Borrower is and will be Solvent; (ii) to the best of their knowledge after due and diligent inquiry, the representations and warranties of such Borrower contained in this Agreement and the Loan Documents are true and correct in all material respects, and (iii) to the best of their knowledge after due and diligent inquiry, both immediately before and immediately after giving effect to the transactions contemplated by this Agreement and the Loan Documents, no Event of Default or Unmatured Event of Default is continuing or shall have received not later occur;
(g) receipt by Agent of Uniform Commercial Code and other public record searches with respect to Borrowers, in each case reasonably satisfactory to Agent;
(h) receipt by Agent for the ratable benefit of Lenders of the original certificates evidencing one hundred percent (100%) of the issued and outstanding Capital Stock of each Subsidiary (other than the Drawdown Date the following documents or evidence Excluded Subsidiaries), together with undated stock powers with respect thereto, duly executed in blank, and in form and substance satisfactory to Agent;
(i) receipt by Agent of (i) the Lender Closing Fee, (ii) $3,375 for the initial Audit Fee, and its legal advisers:
19.01.01 a copy, certified as a true copy by (iii) all Expenses owing on the secretary of each Corporate Security Party of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement Closing Date (as other than Expenses in the form of Schedule 2 hereof) fees and expenses of Chicago Title respecting the other Finance Documents as each is a party theretoReal Property Collateral, which shall be paid by First Bank); Parent authorizes Agent to apply the $20,000 deposit previously paid to Agent against amounts owing under this clause (i);
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01(j) no Material Adverse Effect shall have occurred, as determined by Agent in its reasonable discretion;
19.01.03 certificates or other evidence satisfactory to the (k) receipt by Agent, with a copy for each Lender, of copies of insurance binders or insurance certificates evidencing Borrowers' having caused to be obtained insurance in its sole discretion accordance with Section 6.5, including the lender's loss payee endorsements required by such Section;
(l) receipt by Agent of Pay-Off Letters from the Old Lenders, and such UCC-2 Termination Statements and other Lien releases as Agent shall reasonably require, duly executed by such Old Lenders, all of the existence and good standing of each Security Party;
19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof foregoing in form and substance reasonably satisfactory to the LenderAgent;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender (m) receipt by Agent, with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the a counterpart for each Lender, free of any Encumbrances otherwise than such other documents, instruments and agreements as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case Agent may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm reasonably request in connection with the preparation transactions contemplated hereunder or to perfect or protect the liens and security interests granted to Agent for the ratable benefit of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender;
19.01.29 such further documents and evidence as the Lender may hereafter request.
19.02 The agreement of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Date, but Lenders in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions:
19.03.01 That both at the date of the Notice of Drawdown and on the Drawdown Date:
(i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility availableconnection herewith; and
(iin) the representations and warranties of the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such dateClosing Date shall have occurred on or before November 30, as if made on each such date with reference to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation to any one or more of the Security Parties or any other member of the Group; and2001.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Technical Systems Inc /Ca/)
Conditions Precedent and Subsequent. 19.01 Notwithstanding the provisions of Clause 55.1 As conditions precedent to any advances by SMB hereunder or any other Loan Documents, the agreement of the Lender Borrower shall execute and deliver, or cause to permit the drawdown of the Facility and/or the entering into any Designated Transaction is subject be executed and delivered, to the condition that the Lender shall have received not later than the Drawdown Date the following documents or evidence SMB, in form and substance satisfactory to the Lender SMB and its legal adviserscounsel, the following:
19.01.01 a copy, certified as a true copy by A. The Loan Documents.
B. Financing statements (form UCC-1) and fixture filings in form satisfactory for filing and recording with the secretary of each Corporate Security Party appropriate governmental authorities.
C. Certified extracts from the minutes of the resolutions meetings of Borrower's board of directors authorizing the borrowings and the granting of the shareholders security interest provided for herein and authorizing specific officers to execute and deliver the agreements provided for herein.
D. A certified copy of Borrower's Articles of Incorporation and any amendments thereto, a certificate of good standing showing that Borrower is in good standing under the laws of the State of its incorporation and certificates indicating that Borrower has qualified to transact business and resolutions is in good standing in any other state in which the conduct of its business or its ownership of property requires that it be so qualified.
E. UCC searches, tax lien and litigation searches, fictitious business statement filings, insurance certificates, notices or other similar documents which SMB may require and in such form as SMB may require, in order to reflect, perfect or protect the priority of SMB's security interests in the Collateral and in order to fully consummate all of the directors of each transactions contemplated under this Agreement.
F. A fully completed Borrowing Base Certificate, dated as of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance date of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, and certified as being true and correct by the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto;Chief Executive Officer or Chief Financial Officer.
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence G. Evidence satisfactory to SMB that Borrower has obtained insurance policies or binders, with such insurers and in such amounts as may be acceptable to SMB, respecting the LenderInventory, Equipment and any other tangible personal property comprising the Collateral and naming SMB as a loss payee on a lender's loss payee endorsement acceptable to SMB in its sole discretion.
H. A subordination agreement, in a form acceptable to SMB in its sole discretion, duly executed and delivered by the Subordinating Creditor to SMB.
I. Evidence satisfactory to SMB, in its sole discretion discretion, that Borrower has recorded fictitious business name statements in the appropriate governmental offices regarding all of the existence trade names used by Borrower in its business.
J. An executed counterpart of the Merger Agreement certified by an officer of IBI and good standing FFM to be a true and correct counterpart of the Merger Agreement, including all amendments, modifications, exhibits and schedules thereto.
K. Evidence acceptable to SMB that IBI, FFM and Fast Forward have filed with the office of the California Secretary of State all of the documents and have paid all of the required fees which are necessary to complete the merger of FFM and Fast Forward, with FFM being the surviving entity, on terms and conditions acceptable to SMB, in its sole discretion.
L. An opinion of counsel for IBI and FFM addressed to SMB stating that the merger of FFM and Fast Forward pursuant to the Merger Agreement was in compliance with applicable law and has been consummated, IBI and FFM each Security Party;
19.01.04 certificate issued by has full corporate power and authority to enter into and perform the respective director or secretary Loan Documents; each of the officers of IBI and FFM who executes and/or delivers any of the Loan Documents has been duly authorized to do so and each Corporate Security Party specifying of them has the Directors full corporate power and Officers authority to perform such acts and to bind IBI and FFM (as appropriate) thereby; IBI's and FFM's execution and delivery of each such Corporate Security Party (and the Loan Documents will not result in a breach of any corporate directormaterial agreement known to such counsel to which either IBI or FFM, officer thereof)or both, its authorized and issued share capital (and of any corporate shareholder thereof) and in respect is a party; each of the BorrowerLoan Documents is binding and enforceable against IBI and FFM in accordance with its terms, a certificate issued by a director subject only to bankruptcy, insolvency, or other laws affecting the secretary rights of creditors generally; provided, however, that such laws do not and will not materially impair, affect, or limit the Borrowerrights and benefits granted to SMB under such documents; IBI and FFM each conducts its business in conformity with all applicable federal, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Partystate and local laws and regulations; all permits, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approvalnotices, consents, licences, authorisations, validations or exemptions which and other actions necessary to complete the Lender or its legal advisers may require) transactions contemplated by the Security Parties or any of them Loan Documents have been obtained and taken; and such other and further matters which are customarily opined to by counsel for borrowers in connection with respect to this Agreement and the other Finance Documents;similar transactions.
19.01.07 such documents or evidence relating to the ultimate beneficial ownership M. A separate continuing guaranty of the Obligations of Borrower to SMB, in a form acceptable to SMB in its sole discretion, duly executed and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge delivered by each of the Lender's customers Guarantors, respectively. The guaranties shall not constitute an obligation of Guarantors owing to SMB unless and compliance to the full satisfaction until Guarantors no longer beneficially own at least thirty percent (30%) of the Lender with all necessary "know your customer" issued and money laundering requirements (including but without limitation compliance to the full satisfaction outstanding common stock of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), IBI as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured determined in accordance with the provisions terms of this Agreement;the guaranties.
19.01.15 evidence N. Evidence satisfactory to SMB, in its sole discretion, that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies amount of the classification Subordinated Debt is not less than Two Million Dollars ($2,000,000).
O. A disbursement letter from Borrower authorizing and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender directing SMB to make those payments forthwith by debiting any account of the Borrower held with the Lender;
19.01.29 such further documents and evidence as the Lender may hereafter requestinitial advances hereunder.
19.02 The agreement of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Date, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions:
19.03.01 That both at the date of the Notice of Drawdown and on the Drawdown Date:
(i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and
(ii) the representations and warranties of the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation to any one or more of the Security Parties or any other member of the Group; and
Appears in 1 contract
Samples: Loan and Security Agreement (Intervisual Books Inc /Ca)
Conditions Precedent and Subsequent. 19.01 Notwithstanding 4.1 The amendments to the provisions of Clause 5, Facility Agreement as set out in the agreement Annexure will not take effect until the Bank has received all of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction is subject to the condition that the Lender shall have received not later than the Drawdown Date the following documents or evidence in form and substance satisfactory to the Lender and its legal advisersit:
19.01.01 (a) a copycertified copy of an extract of the minutes of a meeting of the board of directors and any other corporate authorisations of each Relevant Company which evidences the resolutions authorising the execution, delivery and observance of obligations under each Relevant Document and the carrying out of any transaction contemplated by those documents;
(b) in respect of each Guarantor:
(i) a certified as copy of extract of shareholders’ resolution authorising the giving of the Group Guarantee;
(ii) a true copy declaration of solvency signed by two directors of the Guarantor;
(iii) a declaration under Part 3.2A of the Corporations Law signed by two directors of the Guarantor; and
(c) each Relevant Document duly executed.
4.2 Anything required to be certified under clause 4.1 must be certified by the secretary of each Corporate Security Party or a director of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the BorrowerRelevant Company, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto;
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence satisfactory to the Lender, in its sole discretion of the existence and good standing of each Security Party;
19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be, as being true and complete as at a date no earlier than the Effective Date.
4.3 Each Relevant Company undertakes to ensure that legal opinions (in form and substance acceptable to the Bank) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, execution of the Borrower Relevant Documents by Sims USA and Sims UK are furnished to the Manager;Bank within three months from the date of this agreement.
19.01.18 (a) The parties agree that failure to comply with clause 4.3(a) will constitute an Event of Default under the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Negative Pledge Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Facility Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender;
19.01.29 such further documents and evidence as the Lender may hereafter request.
19.02 The agreement 4.4 If and in so far as it may be beyond the power of the Lender to maintain the Facility or any part thereof and/or Relevant Company to enter into and/or be bound by and/or perform its obligations under any Designated Transaction is subject to Document, the condition that liability of any remaining Relevant Company under the Lender shall have received as soon as practicable after the Drawdown DateTransaction Document will not be thereby discharged, varied or affected in any way, but the Transaction Document will continue in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form full force and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment effect so far as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions:
19.03.01 That both at the date of the Notice of Drawdown and on the Drawdown Date:
(i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and
(ii) the representations and warranties of the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation it relates to any one or more of the Security Parties or any other member of the Group; andremaining Relevant Company.
Appears in 1 contract
Conditions Precedent and Subsequent. 19.01 Notwithstanding the provisions of Clause 5, the agreement of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction is subject to the condition that the Lender shall have received not later than the Drawdown Date the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers:
19.01.01 a copy, certified as a true copy by the secretary of each Corporate Security Party of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided 23.1 The Parties' obligations under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto;
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence satisfactory to the Lender, in its sole discretion of the existence and good standing of each Security Party;
19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and Annexes hereto shall be contingent upon the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free prior occurrence of all liens or charges;the following conditions:
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Chartera) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation execution of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith applicable Supplemental Agreements by debiting any account a duly authorized representative of the Borrower held with the Lendereach Party;
19.01.29 such further documents and evidence as (b) the Lender may hereafter request.
19.02 The mutual agreement of the Lender Parties to maintain the Facility or any part thereof and/or terms and conditions of all the Annexes hereto;
(c) Approval of all relevant governmental authorities which may be necessary for the Parties to enter into any Designated Transaction is subject and implement this Agreement;
(d) The incorporation of the JV;
(e) the approval by the respective Boards of Directors of Compuserve, SINA and AdForce of the purchase of JV Shares. Despite the foregoing, Compuserve's failure to enter into this Agreement shall not be deemed a condition to the condition that obligations of AdForce and Sina under this Agreement. In such event, AdForce and Sina agree to use reasonable efforts to locate another consulting firm to perform the Lender shall have received as soon as practicable after localization of the Drawdown Date, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory technology to be licensed to the Lender JV and its legal advisers
19.02.01 a letter from to locate another reseller of the agents referred to in Clauses 41.04 JV's services. The completion of and 41.05 addressed entry into the Annexes which have not been completed upon the execution of this Agreement by AdForce and Sina ARE conditions to the Lender confirming acceptance Parties' obligations under this Agreement. The Parties agree to use reasonable, good faith efforts to conclude such Annexes within a reasonable time. Moreover, with respect Annex F (the Marketing Agreement), AdForce and Sina both agree that Sina's primary obligations thereunder will be: - to provide the JV with [*] banner impressions per year with the banners supplied by AdForce - to identify the JV as a key or strategic partner and as the provider of their appointment as agents for service the ad management and delivery system in all appropriate Sina print advertisements - to include a description of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable JV's system in its media kit - to include a "powered by JV" or JV logo in the Lender advertising section of Sina's web sites as well as opinion letters from a link to the Security JV's web site - to host press events and introduce the JV to markets within the Territory and Sina advertisers - and such other functions as the Parties mutually agree upon. The above banner impressions will be free of charge. Other marketing services may be subject to mutually agreed fees and/or reimbursement of reasonable costs.
23.2 The Parties' legal counsel in relation continuing obligations under this Agreement shall be contingent upon the grant of such license(s) and other approvals, including export licenses, as required by United States law and other applicable law to take the actions contemplated by this Agreement and the Annexes thereto. If any of such license or the other Finance Documents approvals are not granted, with the result that the purposes of this Agreement are substantially frustrated, the Parties shall enter into good faith negotiations with the objective of restructuring the relationship between them such that the effects of such nonoccurrence shall be minimized. If the Parties cannot agree on a mutually agreeable restructuring or modification of this Agreement within six (6) months of any Party's request for such negotiations, any Party shall have the right to terminate this Agreement forthwith in form and substance satisfactory its entirety (except as provided in Section 19.5) by giving written notice to that effect to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter requestother Parties.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions:
19.03.01 That both at the date of the Notice of Drawdown and on the Drawdown Date:
(i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and
(ii) the representations and warranties of the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation to any one or more of the Security Parties or any other member of the Group; and
Appears in 1 contract
Conditions Precedent and Subsequent. 19.01 Notwithstanding the provisions of Clause 5, the agreement of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction is subject to the condition that the Lender The Term Loan shall have received not later than the Drawdown Date the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers:
19.01.01 a copy, certified as a true copy by the secretary of each Corporate Security Party of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto;
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence satisfactory to the Lender, in its sole discretion of the existence and good standing of each Security Party;
19.01.04 certificate issued by the respective director or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect to this Agreement and the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender;
19.01.29 such further documents and evidence as the Lender may hereafter request.
19.02 The agreement of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Date, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditionsconditions precedent and subsequent:
19.03.01 That both at 3.1 The following are the conditions precedent to the making of the Term Loan:
A. Borrower shall pay Bank a closing fee in the amount of Fifty Thousand and No/100 Dollars ($50,000.00).
B. No Event of Default shall have occurred and be continuing and all of the representations and warranties set forth herein are true and correct as of the date of the Notice making of Drawdown and on the Drawdown Date:Term Loan.
C. Borrower shall deliver to Bank (i) no Event certified extracts from the minutes of Default or Potential Event the meetings of Default has occurred or might result from making Borrower’s Board of Directors authorizing the Facility available; and
borrowings and the granting of the security interest provided for herein and authorizing specific officers to execute and deliver the agreements provided for herein and (ii) the representations and warranties a copy of the Borrower’s operating agreement in effect on the date hereof.
D. Borrower set out in Clause 17 as well as shall deliver to Bank evidence that the representations and warranties Guarantor has authorized the execution of the Guaranty.
E. Guarantor shall have executed and delivered to Bank the Guaranty, in a form acceptable to Bank in its sole discretion.
F. Borrower shall have delivered to Bank the Term Loan Documents.
G. Borrower shall have delivered to Bank evidence satisfactory to Bank that Borrower has obtained insurance policies or binders, with such insurers and in such amounts as may be acceptable to Bank, respecting the Collateral.
H. Borrower shall pay Bank all of Bank’s costs, fees (including attorneys’ and paralegals’ fees) and expenses incurred by or charged to Bank in structuring, drafting, or concerning this Agreement or any of the other Security Parties set out Term Loan Documents.
I. Bank shall have a first priority security interest in the Collateral, subject to no other Finance Documents are true and accurate in all material respects liens except Permitted Liens.
J. Deliver or cause to be delivered to Bank such other executed documents as of each such date, as if made on each such date with reference to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation to any one or more of the Security Parties or any other member of the Group; andBank may reasonably require.
Appears in 1 contract
Samples: Term Loan Agreement (Cherokee Inc)
Conditions Precedent and Subsequent. 19.01 Notwithstanding the provisions of Clause 5, the agreement of the Lender to permit the drawdown of the Facility and/or the entering into any Designated Transaction is The Term Loans shall be subject to the condition following conditions precedent and subsequent:
3.1 The following are the conditions precedent to the making of the Term Loans:
A. Borrower shall pay Bank a closing fee in the amount of Ten Thousand and No/100 Dollars ($10,000.00).
B. No Event of Default shall have occurred and be continuing and all of the representations and warranties set forth herein are true and correct as of the date of the making of the Term Loans.
C. Borrower shall deliver to Bank (i) certified extracts from the minutes of the meetings of Borrower’s Board of Directors authorizing the borrowings and the granting of the security interest provided for herein and authorizing specific officers to execute and deliver the agreements provided for herein and (ii) a copy of the Borrower’s operating agreement in effect on the date hereof.
D. Borrower shall deliver to Bank evidence that the Lender Guarantor has authorized the execution of the Guaranty.
E. Guarantor shall have executed and delivered to Bank the Guaranty, in a form acceptable to Bank in its sole discretion.
F. Borrower shall have delivered to Bank the Term Loan Documents.
G. Borrower shall have delivered to Bank evidence satisfactory to Bank that Borrower has obtained insurance policies or binders, with such insurers and in such amounts as may be acceptable to Bank, respecting the Collateral.
H. Borrower shall pay Bank all of Bank’s costs, fees (including attorneys’ and paralegals’ fees) and expenses incurred by or charged to Bank in structuring, drafting, or concerning this Agreement or any of the other Term Loan Documents.
I. Bank shall have a first priority security interest in the Collateral, subject to no other liens except Permitted Liens.
J. Borrower shall have repaid the obligations under the Original Loan Agreement in such amount necessary so that the aggregate outstanding obligations thereunder do not exceed $7,000,000.
K. Bank shall have received not later than the Drawdown Date the following documents or evidence from Borrower cash in form and substance satisfactory an amount sufficient to the Lender and its legal advisers:
19.01.01 a copycash collateralize all initial Obligations under Term Loan A, certified which cash collateral shall be held by Bank in such accounts as a true copy by the secretary of each Corporate Security Party of the resolutions of the shareholders of the Borrower and resolutions of the directors of each of the Borrower, the Guarantor and the Manager, authorising the transaction contemplated hereby, resolving the issuance of each respective power of attorney to be provided under Clause 19.01.02 and authorising a person or persons to sign or executeon their behalf this Agreement, the Notice of Drawdown, the Acknowledgement (as in the form of Schedule 2 hereof) and the other Finance Documents as each is a party thereto;
19.01.02 the originals of any power or powers of attorney granted pursuant to Clause 19.01.01;
19.01.03 certificates or other evidence satisfactory to the Lender, Bank deems necessary in its sole discretion of the existence and good standing of each Security Party;(such accounts may or may not be interest bearing).
19.01.04 certificate issued by the respective director L. Deliver or secretary of each Corporate Security Party specifying the Directors and Officers of each such Corporate Security Party (and of any corporate director, officer thereof), its authorized and issued share capital (and of any corporate shareholder thereof) and in respect of the Borrower, a certificate issued by a director or the secretary of the Borrower, specifying the shareholders thereof;
19.01.05 copies of the relevant constitutional documents of each Corporate Security Party, certified as true copies by the Borrower's legal counsel;
19.01.06 certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action (including but without limitation governmental approval, consents, licences, authorisations, validations or exemptions which the Lender or its legal advisers may require) by the Security Parties or any of them with respect cause to this Agreement and the other Finance Documents;
19.01.07 such documents or evidence relating to the ultimate beneficial ownership of the Borrower and any corporate shareholder(s) thereof in form and substance satisfactory to the Lender;
19.01.08 such documents or evidence relating to the verification of identity and knowledge of the Lender's customers and compliance to the full satisfaction of the Lender with all necessary "know your customer" and money laundering requirements (including but without limitation compliance to the full satisfaction of the Lender with any requirements in relation to the shares of the Borrower and the Manager and any corporate shareholder(s) thereof), as the Lender may in its absolute discretion require;
19.01.09 evidence that the Earnings Account has been duly opened by the Borrower, as appropriate and all mandate forms, signature cards and authorities have been duly delivered and that the Earnings Account is free of all liens or charges;
19.01.10 payment of the fees in accordance with Clause 26;
19.01.11 evidence that the Borrower have complied with its obligations under Clauses 20.37 and 20.38;
19.01.12 evidence that the Ship has been duly be delivered to and accepted by the Borrower and that she is duly registered in the ownership of the Borrower at the relevant ships' Registry acceptable by the Lender, free of any Encumbrances otherwise than Bank such other executed documents as contemplated herein;
19.01.13 (if required by the Lender) a charter free market valuation of the Ship on the basis specified in Clause 22.26;
19.01.14 evidence that the Ship is insured in accordance with the provisions of this Agreement;
19.01.15 evidence that the Ship is classed at the highest classification status with the Classification Society free of recommendations or other conditions or notations affecting her class;
19.01.16 certified copies of the classification and international safety and trading certificates issued by the Classification Society of the Ship and each other competent authority (as the case Bank may be) free of recommendations or other conditions affecting her class;
19.01.17 copies of the ISM Code Documentation and the ISPS Code Documentation in relation to the Ship, the Borrower and the Manager;
19.01.18 the Mortgage on the Ship duly executed by the Borrower, legalised as appropriate and registered at the appropriate Shipping Registry;
19.01.19 the Master Agreement and the Master Agreement Assignment duly executed by the Borrower;
19.01.20 the General Assignment and Earnings Account Charge duly executed by the Borrower;
19.01.21 notices of assignment of the Insurances in respect of the Ship duly signed by the Borrower;
19.01.22 notices of assignment of the Earnings in respect of the Ship duly signed by the Borrower;
19.01.23 the Manager's Undertaking in respect of the Ship together with notices of assignment of the right, title and benefit of the Manager to the Insurances of the Ship, duly executed, as appropriate;
19.01.24 the Guarantee duly executed by the Guarantor;
19.01.25 (in case the Ship is under an Approved Charter) the Approved Charter Assignment duly executed by the Borrower together with the relevant notices thereof acknowledged by the relevant charterer(s);
19.01.26 copy of the Management Agreement, the Purchase Documents and the Approved Charter (if any), all certified as true and complete copies thereof by the Borrower's legal counsel;
19.01.27 the Manager's Undertaking in respect of the Ship duly executed by the Manager, and respective notices thereof;
19.01.28 evidence that an amount of Seven thousand Five hundred Euros (€7,500), plus disbursements and VAT thereon has been paid to the Messrs V&P Law Firm in connection with the preparation of this Agreement and the other Finance Documents, or irrevocable written mandates to the Lender to make those payments forthwith by debiting any account of the Borrower held with the Lender;
19.01.29 such further documents and evidence as the Lender may hereafter requestreasonably require.
19.02 The agreement of the Lender to maintain the Facility or any part thereof and/or to enter into any Designated Transaction is subject to the condition that the Lender shall have received as soon as practicable after the Drawdown Date, but in any event not later than twenty (20) days after the Drawdown Date, the following documents or evidence in form and substance satisfactory to the Lender and its legal advisers
19.02.01 a letter from the agents referred to in Clauses 41.04 and 41.05 addressed to the Lender confirming acceptance of their appointment as agents for service of process;
19.02.02 the opinion letters from counsels appointed and/or acceptable to the Lender as well as opinion letters from the Security Parties' legal counsel in relation to this Agreement and the other Finance Documents in form and substance satisfactory to the Lender; and
19.02.03 such further documents and evidence as the Lender may hereafter request.
19.03 The obligation of the Lender to advance the Facility or any part thereof is further subject to the following conditions:
19.03.01 That both at the date of the Notice of Drawdown and on the Drawdown Date:
(i) no Event of Default or Potential Event of Default has occurred or might result from making the Facility available; and
(ii) the representations and warranties of the Borrower set out in Clause 17 as well as the representations and warranties of the Borrower and of the other Security Parties set out in the other Finance Documents are true and accurate in all material respects as of each such date, as if made on each such date with reference to the facts then subsisting; and
(iii) there is not a Material Adverse Effect in relation to any one or more of the Security Parties or any other member of the Group; and
Appears in 1 contract
Samples: Term Loan Agreement (Cherokee Inc)
