Covenants and Agreements. Each Grantor hereby covenants and agrees that: (i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein; (ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect; (iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby; (iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein; (v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment; (vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof; (vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and (viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 4 contracts
Samples: Revolving Credit Pledge and Security Agreement, Revolving Credit Pledge and Security Agreement (NewPage Holding CORP), Revolving Credit Pledge and Security Agreement (NewPage CORP)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat to the extent any of the Collateral includes any Investment Related Property:
(i) except for in the security interest created by this Agreementevent it acquires rights in any such Investment Related Property after the date hereof, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying reflecting such new proposed nameInvestment Related Property and all other such Investment Related Property. Notwithstanding the foregoing, identity, corporate structure, sole place it is understood and agreed that the security interest of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request shall attach to all such Investment Related Property immediately upon any Grantor’s acquisition of rights therein and shall not be affected by the failure of any Grantor to deliver a supplement to Schedule 4.4 as required hereby;
(ii) except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any such Investment Related Property, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any issuer of any such Investment Related Property, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) taken such Grantor shall immediately take all actions steps, if any, necessary or advisable to maintain ensure the continuous validity, perfection and the same or better perfection, priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) and, if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateralapplicable, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies control of the Collateral Agent in relation thereto, over such Investment Related Property (including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected delivery thereof to materially impair the Collateral Agent’s rights ) and pending any such action such Grantor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the Collateralbenefit of the Collateral Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each Grantor to retain all ordinary cash dividends and distributions paid by the issuer and all scheduled payments of interest and principal; and
(viiiiii) it shall not sell, transfer or assign (each Grantor consents to the grant by operation each other Grantor of law or otherwise) any a Security Interest in all such Investment Related Property to the Collateral except as otherwise permitted in accordance with the Credit AgreementAgent.
Appears in 4 contracts
Samples: Revolving Credit Pledge and Security Agreement, Revolving Credit Pledge and Security Agreement (NewPage CORP), Revolving Credit Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. (i) Each Grantor hereby covenants and agrees that:
(i) except for that if at any time on or after the security interest created by this Agreementdate hereof, it shall not create or suffer acquire any Owned Real Property, then it shall, at its own cost and expense, promptly (A) notify the Collateral Agent thereof in writing and (B) execute and deliver to exist any Lien upon or the Collateral Agent (1) counterparts of a Mortgage with respect to any such Owned Real Property, signed on behalf of the Collateralrecord owner of such Owned Real Property, except (2) a policy or policies of title insurance issued by a nationally recognized title insurance company, insuring the Lien of each such Mortgage as a valid first Lien on such Owned Real Property described therein, free of any other Liens other than Permitted Liens, in form and substance reasonably acceptable to the Applicable Representative, together with such Grantor shall defend endorsements, coinsurance and reinsurance as the Collateral against Applicable Representative or the Majority Creditors may reasonably request, (3) such surveys as may be required pursuant to such Mortgages or as the Applicable Representative or the Majority Creditors may reasonably request, (4) a copy of the original permanent certificate or temporary certificate of occupancy as the same may have been amended or issued from time to time, covering each improvement located upon such Real Property that were required to have been issued by the appropriate Governmental Authority for such improvement, (5) written confirmation from the applicable zoning commission or other appropriate Governmental Authority stating that, with respect to Real Property as built, it complies with existing land use and zoning ordinances, regulations and restrictions applicable to such Real Property, (6) a copy of a phase I environmental report issued for each such Real Property, each such report to be satisfactory to the Applicable Representative, (7) a Mortgage Opinion of Counsel and (8) such other customary documentation with respect to the Mortgages and the Real Property, including copies of all Persons at any time claiming any interest therein;appraisals issued with respect thereto, as the Applicable Representative or the Majority Creditors may reasonably request.
(ii) Each Grantor agrees that no later than 90 days after the date hereof, it shall not produce, will use or permit any Collateral commercially reasonable efforts to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering deliver to the Collateral Agent Agent, a completed Pledge SupplementMortgage with respect to each Leased Real Property listed on Schedule 3.9(a)(ii)(D), together with a landlord's consent thereto substantially in the form of Exhibit A attached heretoD, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place a recorded memorandum of business, chief executive office or jurisdiction of organization or trade name lease and providing such other information in connection therewith customary documentation with respect thereto as the Collateral Agent Agent, acting at the direction of the Applicable Representative may reasonably request request. In addition, each Grantor hereby covenants and (b) taken all actions necessary agrees that if at any time on or advisable to maintain after the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateraldate hereof, it shall use such value for such purposes become the lessee with respect to any Leased Real Property which, if terminated, could reasonably be expected to result in a Material Adverse Effect, then it shall, at its own cost and such Grantor further agrees that repayment of any Obligation shall apply on a “first-inexpense, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
promptly (vA) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent thereof in writing of any event that would reasonably be expected and (B) use commercially reasonable efforts to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent deliver to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights , a Mortgage thereon together with a landlord's consent thereto substantially in the Collateral; and
(viii) it shall not sellform of Exhibit D, transfer or assign (by operation a recorded memorandum of law or otherwise) any lease, a Mortgage Opinion of Counsel and such other customary documentation with respect thereto as the Collateral except as otherwise permitted in accordance with Agent, acting at the Credit Agreementdirection of the Applicable Representative may reasonably request.
Appears in 4 contracts
Samples: Indenture (Arch Wireless Inc), Indenture (Arch Wireless Inc), Indenture (Arch Wireless Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatas follows:
(i) except for the security interest created Each Grantor hereby agrees that all certificates or instruments representing or evidencing Investment-Related Property acquired by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor after the Applicable Date shall defend be delivered to the Collateral against Administrative Agent at the time required by the Credit Agreement. All certificated Investment-Related Property shall be in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all Persons at any time claiming any interest therein;in form and substance satisfactory to the Administrative Agent.
(ii) Each Grantor agrees that it shall will not produceestablish or maintain, use or permit any Collateral other Grantor to be used unlawfully establish or in violation of maintain, any provision of this Agreement Securities Account or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have commodities account that is not a Material Adverse Effect;Blocked Account.
(iii) Each Grantor hereby agrees that if any Investment-Related Property (other than Investment-Related Property held in a Securities Account) is at any time not evidenced by certificates of ownership, then it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (aA) notified cause the Collateral Agent in writing, by executing issuer thereof to execute and delivering deliver to the Collateral Administrative Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority an Issuer’s Acknowledgment of the Collateral Agent’s pledge, (B) if necessary to perfect a security interest in the Collateral intended such Investment-Related Property, cause such pledge to be granted recorded on the equityholder register or the books of the issuer, execute any customary pledge forms or other documents necessary or appropriate to complete the pledge and agreed give the Administrative Agent the right to hereby;transfer such Investment-Related Property under the terms hereof and (C) after the occurrence and during the continuance of any Event of Default, upon request by the Administrative Agent, (1) cause the Organizational Documents of each such issuer that is a Subsidiary of the Borrower to be amended to provide that such Investment-Related Property shall be treated as “securities” for purposes of the UCC and (2) cause such Investment-Related Property to become certificated and delivered to the Administrative Agent in accordance with the provisions of clause (i) above.
(iv) if In the Collateral Agent or event (A) any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any Approved Securities Intermediary shall, after the date hereof, terminate an agreement with respect to the maintenance of a Blocked Account for any reason, (B) the Collateral Administrative Agent shall demand the termination of an agreement with respect to the maintenance of a Blocked Account as a result of the failure of an Approved Securities Intermediary to make such payment;
comply with the terms of the applicable Securities Account Control Agreement, or (viC) upon the Administrative Agent determines in its sole discretion that the financial condition of an Approved Securities Intermediary has materially deteriorated, such Grantor or any Senior Officer of agrees to promptly transfer the assets held in such Grantor obtaining actual knowledge thereof, it shall promptly notify Blocked Account to another Blocked Account acceptable to the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Administrative Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, Inc.)
Covenants and Agreements. Each Grantor hereby A deviation from the provisions of this Article IV shall not constitute a default under this Security Agreement if such deviation is consented to in writing by Secured Party. Without the prior written consent of Secured Party, Debtor will at all times comply with the covenants contained in this Article IV, from the date hereof and agrees that:
for so long as any part of the Secured Obligations is outstanding. Debtor recognizes that one or more financing statements pertaining to the Collateral provided by Debtor will be filed in one or more filing offices. Debtor will promptly notify Secured Party of any condition or event that may change the proper location for the filing of any financing statements or other public notice or recordings for the purpose of perfecting a security interest in the Collateral. Without limiting the generality of the foregoing, Debtor will (a) promptly notify Secured Party of any change (i) except for in the security interest created by this Agreementlocation of the office where such Debtor keeps its records concerning its Accounts or (ii) in the “location” of such Debtor within the meaning set forth in the Code or the jurisdiction in which Debtor is incorporated, it shall not create organized or suffer to exist any Lien upon or with respect formed; (b) prior to any of the CollateralCollateral provided by Debtor becoming so related to any particular real estate so as to become a fixture on such real estate, except Permitted Liensnotify Secured Party of the description of such real estate and the name of the record owner thereof, to the extent such real estate is not already encumbered in favor or for the benefit of Secured Party to secure the Secured Obligations; and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(iic) it shall not produce, use or permit any Collateral to be used unlawfully or in violation promptly notify Secured Party of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantorin Debtor’s name, identityidentity or structure. In any notice furnished pursuant to this paragraph, corporate structure (e.g., Debtor will expressly state that the notice is required by merger, consolidation, change in corporate form this Security Agreement and contains facts that will or otherwise), sole place may require additional filings of business, chief executive office, type financing statements or other notices for the purpose of organization or jurisdiction continuing perfection of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral AgentSecured Party’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Collateral. Further, Debtor authorizes Secured Party gives value to enable Grantor file, at the expense of such Debtor, any and all financing statements, pursuant to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion Article 9 of the value used to acquire rights Code, as Secured Party deems necessary, in any Collateral shall be paid its sole discretion, in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance conjunction with the Credit this Security Agreement.
Appears in 3 contracts
Samples: Security Agreement (Allied Corp.), Security Agreement (Allied Corp.), Security Agreement (Allied Corp.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:5.1 Given by Acquiror
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified until the Collateral Agent in writingexpiry of the Due Diligence Period, by executing and delivering to the Collateral Agent a completed Pledge Supplementpermit representatives of BYND, substantially in the form of Exhibit A attached heretoFundingco, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection Cannasoft and the same or better priority of the Collateral AgentBYND Shareholders full access during normal business hours to Acquiror’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, documents including, without limitation, all of the levy assets, contracts, financial records and minute books of any legal process against the Collateral or any portion thereofAcquiror, so as to permit such investigation of Acquiror as BYND and Fundingco deem reasonably necessary;
(viib) it shall use its reasonable commercial efforts to obtain, in a timely manner, all necessary Acquiror shareholder approvals (if deemed necessary) and Regulatory and Third Party Approvals for the transactions contemplated hereunder which the Acquiror is required to obtain, and if shareholder approval is sought, to have insiders of Acquiror enter into voting agreements with BYND whereby such insiders agree to vote their shares in favour of the transactions contemplated hereunder;
(c) use commercially reasonable efforts to approve and adopt the Resulting Issuer Option Plan in accordance with Exchange requirements, including if applicable, obtaining shareholder approval;
(d) as soon as practicable after the Effective Date, file the preliminary NOP in British Columbia and such other jurisdictions (if any) as the parties may agree for the purposes of: (i) qualifying the issuance of the Resulting Issuer Shares upon the conversion of the Acquiror Special Warrants; (ii) qualifying the issuance of the Resulting Issuer Shares upon the conversion of the Fundingco Seed Financing Special Warrants; (iii) qualifying the issuance of the Resulting Issuer Shares upon the conversion of the Fundingco Secondary Financing Special Warrants; (iv) qualifying, to the extent possible, all previously issued shares of the Acquiror; (v) becoming a reporting issuer in those jurisdictions; and (vi) satisfying an anticipated condition to the Resulting Issuer listing on the CSE;
(e) co-operate with Fundingco, in Fundingco’s efforts to complete the Fundingco Secondary Financing such that the closing of the Fundingco Secondary Financing will occur prior to or concurrently with the Closing;
(f) use its reasonable commercial efforts to obtain Exchange approval to list the common shares of the Resulting Issuer for trading on the Exchange;
(g) not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights result in the CollateralExchange refusing to list its common shares for trading;
(h) use its reasonable commercial efforts to ensure that any escrow conditions required by the Exchange on the Resulting Issuer Consideration Shares or the Resulting Issuer Shares issued upon conversion of the Fundingco Seed Financing Special Warrants or the Fundingco Secondary Financing Special Warrants is the least restrictive as possible in the circumstances;
(i) not carry on any business or activity except as may be necessary for the Acquiror to complete the Acquisitions as contemplated herein and except where to do so would not material adversely affect the completion of the transactions under this Agreement;
(j) not issue any securities and not enter into any agreement or understanding with any other party other to issue any securities, without the prior written consent of BYND and Fundingco, such consent not to be unreasonably withheld;
(k) not directly or indirectly, solicit, initiate, assist, facilitate, promote or knowingly encourage the initiation of proposals or offers from, entertain or enter into negotiations with, any person (other than BYND, Fundingco, Cannasoft and the BYND Shareholders), with respect to any amalgamation, merger, consolidation, arrangement, restructuring, sale of any material assets or part thereof of it;
(l) comply with the terms hereof and faithfully and expeditiously seek to satisfy the conditions precedent set out in Sections 7.1 and 7.2 and to close the Acquisitions and related transactions;
(m) use its commercially reasonable efforts to conduct its affairs so that the representations and warranties of Acquiror contained herein shall be true and correct in all material respects on and as of the Closing Date as if made on the Closing Date, except to the extent that such representations and warranties require modification to give effect to the transactions contemplated herein;
(n) use its commercially reasonable efforts to obtain all consents, approvals, Permits, authorizations or filings as may be required under applicable corporate laws, securities laws, the rules and policies of the Exchange and the constating documents of Acquiror for the performance by Acquiror of its obligations under this Agreement prior to the Closing;
(o) notify BYND, Fundingco and Cannasoft immediately upon becoming aware that any of the representations or warranties of it contained herein are no longer true and correct in any material respect; and
(viiip) ensure that Acquiror complies in all respects with the foregoing covenants of this Agreement.
5.2 Given by BYND, Fundingco and the BYND Shareholders
(a) until expiry of the Due Diligence Period, permit representatives of Acquiror, at their own cost, full access during normal business hours to each of BYND’s, Fundingco’s and Cannasoft’s documents including, without limitation, all of the assets, contracts, financial records and minute books of BYND, Fundingco and Cannasoft, so as to permit Acquiror to make such investigation of BYND, Fundingco and Cannasoft as Acquiror deems necessary;
(b) use commercially reasonable efforts to complete any steps required in Israel and any other jurisdiction which they may be subject to complete the Acquisitions and the corollary transactions;
(c) prepare the NOP together with any other documents required by Applicable Law in connection therewith as promptly as reasonably practicable following execution of this Agreement;
(d) provide to Acquiror all such further documents, instruments and materials and do all such acts and things as may be reasonably required by Acquiror to seek the Regulatory and Third Party Approvals, including, without limiting the foregoing, providing all relevant information concerning it shall not selland its Business operations and financial statements for inclusion in the NOP, transfer or assign any amendments or supplements to the NOP;
(e) preserve and protect the goodwill, assets, Business and undertaking of BYND, Fundingco and Cannasoft;
(f) use its commercially reasonable efforts to obtain all required third party consents, assignments or waivers and amendments or terminations to any instrument or agreement and take such other measures as may be necessary to fulfil its obligations hereunder and to carry out the transactions contemplated by operation this Agreement, including obtaining any shareholder approvals, consents or agreements, to be able to complete the Acquisitions, on Closing, as contemplated herein;
(g) use commercially reasonable efforts to complete the Fundingco Secondary Financing such that the closing of law the Fundingco Secondary Financing will occur on or otherwiseprior to the Time of Closing;
(h) any Collateral co-operate with Acquiror, in Acquiror’s efforts to obtain all required Regulatory and Third Party Approvals;
(i) carry on the Business of BYND, Fundingco and Cannasoft, as the case may be, in the ordinary course in a reasonable and prudent manner and as otherwise contemplated by this Agreement;
(j) except as otherwise permitted set out in accordance this Agreement, not enter into any agreement or understanding with any other party to issue any securities of BYND, Fundingco or Cannasoft without the prior written consent of Acquiror, such consent not to be unreasonably withheld;
(k) not directly or indirectly, solicit, initiate, assist, facilitate, promote or knowingly encourage the initiation of proposals or offers from, entertain or enter into negotiations with, any person (other than Acquiror), with respect to any amalgamation, merger, consolidation, arrangement, restructuring, sale of any material assets or part thereof of BYND, Fundingco or Cannasoft;
(l) make other necessary filings and applications under applicable, foreign, federal and provincial laws and regulations required on the part of it in connection with the Credit transactions contemplated herein;
(m) use its commercially reasonable efforts to obtain all consents, approvals, Permits, authorizations or filings as may be required under applicable corporate laws, securities laws, the rules and policies of the Exchange and the constating documents of BYND, Fundinco and of Cannasoft for the performance of their respective obligations under this Agreement prior to the Time of Closing;
(n) comply with the terms hereof and faithfully and expeditiously seek to satisfy the conditions precedent set out in Sections 7.1 and 7.3 and to close the Acquisitions and related transactions by the Closing Date;
(o) use its commercially reasonable efforts to conduct its affairs so that all of the representations and warranties of it contained herein shall be true and correct in all material respects on and as of the Closing Date as if made on the Closing Date, except to the extent that such representations and warranties require modification to give effect to the transactions contemplated herein;
(p) notify Acquiror immediately upon becoming aware that any of the representations or warranties of it contained herein are no longer true and correct in any material respect; and
(q) ensure that it complies in all respects with the foregoing covenants of this Agreement.
Appears in 3 contracts
Samples: Business Combination Agreement, Business Combination Agreement (Bynd Cannasoft Enterprises Inc.), Business Combination Agreement (Bynd Cannasoft Enterprises Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for without the security interest created by this Agreementprior written consent of the Priority Lien Collateral Trustee, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially changes the rights of such Grantor with respect to any Investment Related Property or adversely affects the validity, perfection or priority of the CollateralPriority Lien Collateral Trustee’s security interest, (b) permit any issuer of any Pledged Equity Interest to issue any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer, except Permitted Liensto another Grantor who has caused such property to become subjected to a perfected Lien thereon in favor of the Priority Lien Collateral Trustee, and except as otherwise permitted under the Priority Lien Documents, (c) other than as permitted under the Priority Lien Documents, permit any issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, (d) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, or (e) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the foregoing in this clause (e), such Grantor shall defend promptly notify the Priority Lien Collateral against Trustee in writing of any such election or action and, in such event, shall take all Persons at any time claiming any interest thereinsteps necessary or advisable to establish the Priority Lien Collateral Trustee’s “control” thereof;
(ii) it shall not producecomply with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests except to the extent being contested in good faith, use so long as adequate reserve or permit other appropriate provision, as shall be required in GAAP, shall have been made therefore, and shall enforce all of its material rights with respect to any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectInvestment Related Property;
(iii) unless otherwise permitted under the Priority Lien Documents, without the prior written consent of the Priority Lien Collateral Trustee, it shall not change permit any issuer of any Pledged Equity Interest to merge or consolidate unless (i) such Grantor’s nameissuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, identityand (ii) all the outstanding Capital Stock or other equity interests of the surviving or resulting corporation, corporate structure (e.g.limited liability company, partnership or other entity owned by mergera Grantor is, upon such merger or consolidation, change pledged hereunder and no cash, securities or other property is distributed in corporate form respect of the outstanding equity interests of any other constituent Grantor; provided that if the surviving or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to resulting issuer upon any such change merger or establishmentconsolidation is a Controlled Foreign Corporation, identifying then such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information Grantor shall only be required to pledge equity interests in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;accordance with Section 2.2; and
(iv) if each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Priority Lien Collateral Agent or any other Secured Party gives value Trustee and, without limiting the foregoing, consents to enable Grantor to acquire rights in or the use transfer of any Collateral, it shall use such value for such purposes Pledged Partnership Interest and such Grantor further agrees that repayment any Pledged LLC Interest to the Priority Lien Collateral Trustee or its nominee following an Event of any Obligation shall apply on a “first-in, first-out” basis so that Default and to the portion substitution of the value used to acquire rights Priority Lien Collateral Trustee or its nominee as a partner in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges partnership or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall a member in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or limited liability company with all the rights and remedies of the Collateral Agent in relation powers related thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 3 contracts
Samples: Pledge and Security Agreement (NewPage CORP), Pledge and Security Agreement (NewPage Energy Services LLC), Pledge and Security Agreement (NewPage Holding CORP)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), ) sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen thirty (1530) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreementfaith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to may have a Material Adverse Effect material adverse effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially could impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 3 contracts
Samples: Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for without the security interest created by this Agreementprior written consent of the Collateral Agent, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially changes the rights of such Grantor with respect to any of Investment Related Property or adversely affects the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
interest, (ivb) if the Collateral Agent or permit any other Secured Party gives value to enable Grantor to acquire rights in or the use Issuer of any CollateralPledged Equity Interest to issue any additional stock, it shall use such value for such purposes and such Grantor further agrees that repayment partnership interests, limited liability company interests or other equity interests of any Obligation shall apply on a “first-innature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(vc) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and than as otherwise provided in permitted under the Credit Agreement, permit any Issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, (d) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, (e) cause any issuer of any Pledged Equity Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Equity Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any Issuer of any Pledged Equity Interests takes any such action in violation of the foregoing in this clause (e), such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected such election or action and, in such event, shall take all steps necessary or advisable to have a Material Adverse Effect on establish the value Collateral Agent’s “control” thereof, or (f) alter the voting rights with respect to any of the Pledged Equity Interests;
(ii) it shall comply with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with respect to any Investment Related Property;
(iii) without the prior written consent of the Collateral or Agent, it shall not permit any material portion thereof, the ability issuer of any Pledged Equity Interest to merge or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Grantor; provided that if the surviving or resulting Grantors upon any such merger or consolidation involving an issuer which is a Controlled Foreign Corporation, then such Grantor or shall only be required to pledge equity interests in accordance with Section 2.2; and
(iv) each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Collateral Agent and, without limiting the foregoing, consents to dispose the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or any material portion thereof, or its nominee following an Event of Default and to the rights and remedies substitution of the Collateral Agent or its nominee as a partner in relation any partnership or as a member in any limited liability company with all the rights and powers related thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 3 contracts
Samples: Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Priority Lien Collateral Agent Trustee in writing, by executing and delivering to the Priority Lien Collateral Agent Trustee a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Priority Lien Collateral Agent Trustee may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Priority Lien Collateral AgentTrustee’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Priority Lien Collateral Agent Trustee or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit AgreementPriority Lien Documents; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Priority Lien Collateral Agent Trustee in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Priority Lien Collateral Agent Trustee to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Priority Lien Collateral Agent Trustee in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Priority Lien Collateral AgentTrustee’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with each of the Credit AgreementPriority Lien Documents.
Appears in 3 contracts
Samples: Pledge and Security Agreement (NewPage Holding CORP), Pledge and Security Agreement (NewPage Energy Services LLC), Pledge and Security Agreement (NewPage CORP)
Covenants and Agreements. Each Grantor hereby covenants and agrees thatthat until the payment in full of the Secured Obligations:
(i) except for without the security interest created by this Agreementprior written consent of the Collateral Agent, it shall not create vote to enable or suffer to exist take any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;other action to:
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified other than as permitted under the Collateral Agent in writingCredit Agreement, by executing and delivering permit any issuer of any Pledged Equity Interest to issue any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the Collateral Agent a completed Pledge Supplementright of purchase or exchange for any stock or other equity interest of any nature of such issuer, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and than as otherwise provided in permitted under the Credit Agreement; provided, permit any issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, (c) waive any default under or breach of any material terms of any organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, or (d) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC unless such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected such election or action and, in such event, shall take all steps necessary or advisable to have a Material Adverse Effect on the value of establish the Collateral or any material portion Agent's "control" thereof, ;
(ii) [intentionally deleted];
(iii) without the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies prior written consent of the Collateral Agent in relation theretoor as permitted under the Credit Agreement, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action issuer of any Pledged Equity Interest to merge or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which would reasonably such new debtor has or acquires rights, and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder; provided that if the surviving or resulting Grantors upon any such merger or consolidation involving an issuer which is a Controlled Foreign Corporation, then such Grantor shall only be expected required to materially impair the Collateral Agent’s rights pledge equity interests in the Collateralaccordance with Section 2.2; and
(viiiiv) it shall not selleach Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Collateral Agent and, without limiting the foregoing, consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or assign (by operation its nominee following an Event of law Default and to the substitution of the Collateral Agent or otherwise) its nominee as a partner in any Collateral except partnership or as otherwise permitted a member in accordance any limited liability company with all the Credit Agreementrights and powers related thereto.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Autocam Corp/Mi), Pledge and Security Agreement (Autocam Corp/Mi)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for without the security interest created by this Agreementprior written consent of the Collateral Agent, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially changes the rights of such Grantor with respect to any of Investment Related Property or adversely affects the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in interest, (b) other than as permitted under the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or Credit Agreement, permit any other Secured Party gives value to enable Grantor to acquire rights in or the use issuer of any CollateralPledged Equity Interest to issue any additional stock, it shall use such value for such purposes and such Grantor further agrees that repayment partnership interests, limited liability company interests or other equity interests of any Obligation shall apply on a “first-in, first-out” basis so that nature or to issue securities convertible into or granting the portion right of the value used to acquire rights in purchase or exchange for any Collateral shall be paid in the chronological order stock or other equity interest of any nature of such Grantor acquired rights therein;
issuer (v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided permitted in the Credit Agreement), (c) other than as permitted under the Credit Agreement, permit any issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, or (d) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the foregoing in this clause (d), such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected such election or action and, in such event, shall take all steps necessary or advisable to have a Material Adverse Effect on establish the value Collateral Agent’s “control” thereof;
(ii) it shall comply in all material respects with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with respect to any Investment Related Property;
(iii) except as permitted by the Credit Agreement, without the prior written consent of the Collateral or Agent, it shall not permit any material portion thereof, the ability issuer (that is a Subsidiary of such Grantor) of any Pledged Equity Interest to merge, amalgamate, or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger, amalgamation, or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Grantor provided that if the surviving or resulting Grantors upon any such merger or consolidation involving an issuer which is a Foreign Subsidiary, then such Grantor shall only be required to pledge equity interests in accordance with Section 2.2; and
(iv) each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Collateral Agent and, without limiting the foregoing, consents to dispose the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or any material portion thereof, or its nominee following the rights occurrence and remedies during the continuation of an Event of Default and to the substitution of the Collateral Agent or its nominee as a partner in relation any partnership or as a member in any limited liability company with all the rights and powers related thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 2 contracts
Samples: Second Lien Pledge and Security Agreement (Dura Automotive Systems Inc), Revolving Credit Agreement (Dura Automotive Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent Trustee in writing, by executing and delivering to the Collateral Agent Trustee a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, Supplement together with all Supplements to Schedules thereto, at least fifteen five (155) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent Trustee may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral AgentTrustee’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein[Intentionally Omitted];
(v) it shall pay promptly when due all material property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreementfaith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent Trustee in writing of any event that would reasonably be expected to may have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent Trustee to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent Trustee in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would could reasonably be expected to materially impair the Collateral AgentTrustee’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral Collateral, except for Inventory sold in the ordinary course of business or as otherwise expressly permitted in accordance with by the Credit AgreementIndenture.
Appears in 2 contracts
Samples: Senior Notes Security Agreement (PRETIUM CANADA Co), Senior Notes Security Agreement (PRETIUM CANADA Co)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), ) sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreementfaith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to may have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially could impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (X Rite Inc), Second Lien Credit and Guaranty Agreement (X Rite Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) each Grantor shall keep the Equipment, Inventory and any Documents evidencing any Equipment or Inventory in the locations specified on Schedule 4.2 (as such schedule may be amended or supplemented from time to time) except for that:
(A) the security interest created by this Grantors may change the location of any Rig or Titled Collateral in the ordinary course of business, provided that (1) on the date on which financial statements are required to be delivered under Section 5.01(c) of the Credit Agreement, it the Grantors shall not create provide to the Collateral Agent a written report identifying the locations of each Rig and Titled Collateral, together with such other information and documentation in connection therewith as the Collateral Agent may reasonably request, and (2) on or suffer to exist any Lien upon or before the date that is thirty (30) days after the date such report is due, the Grantors shall, with respect to any Rig or Titled Collateral that has changed location, take all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral, except Permitted Liens, and such Grantor shall defend Collateral Agent’s security interest in the Collateral against all Persons at intended to be granted and agreed to hereby, or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder, with respect to such Rig or Titled Collateral (including delivery to the Collateral Agent of an executed Collateral Access Agreement with respect to any time claiming any interest thereinnew leased location);
(iiB) it shall not produce, use or permit any Collateral to be used unlawfully or in violation Grantors may change the location of any provision of this Agreement Equipment, Inventory or Documents evidencing Equipment or Inventory (other than any applicable statute, regulation Rig or ordinance or any policy of insurance covering Title Collateral) in the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place ordinary course of business, chief executive officeprovided that, type of organization or jurisdiction of organization or establish at least thirty (30) days prior to any trade names unless it such change in location, the Grantors shall have (a1) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, Guarantee and Collateral Agreement Supplement identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name locations and providing such other information and documentation in connection therewith as the Collateral Agent may reasonably request and (b2) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby, or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder, with respect to such Equipment, Inventory and Documents (including delivery to the Collateral Agent of an executed Collateral Access Agreement with respect to any new leased location);
(C) Equipment and Inventory may be in transit to or from a Rig location, in transit to or from the location of a repair or maintenance service provider, or at the location of a repair or maintenance service provider, in each case, in the ordinary course of business;
(ii) each Grantor shall keep correct and accurate records of the Inventory, itemizing and describing the kind, type and quantity of Inventory, such Grantor’s cost therefor and (where applicable) the current list prices for the Inventory, in each case, in reasonable detail, and in any event in conformity with GAAP;
(iii) no Grantor shall deliver any Document evidencing any Equipment or Inventory to any Person other than the issuer of such Document to claim the Goods evidenced therefor or the Collateral Agent;
(iv) if any Equipment or Inventory is in possession or control of any third party, or located on any premises not owned by a Grantor, then each Grantor shall join with the Collateral Agent in notifying the third party or any other Secured Party gives value owner of such premises of the Collateral Agent’s security interest and obtain a collateral access agreement or landlord waiver from such third party or owner of such premises in form and substance satisfactory to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on Collateral Agent (a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;Access Agreement”); and
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, Upon the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any request of the Collateral as a result Agent, each Grantor shall provide any information reasonably requested with respect to Titled Collateral. At any time that Availability is less than $5,000,000, or at any time that an Event of Default has occurred and is continuing, upon the request of the failure Collateral Agent, each Grantor shall, if the aggregate value of the Titled Collateral of the Grantors is greater than or equal to make such payment;
$100,000, (viA) upon such Grantor execute and file with the registrar of motor vehicles or other appropriate authority in each applicable jurisdiction, an application or other document necessary or appropriate to cause the notation or other indication of the security interest created hereunder on each certificate of title covering any Senior Officer of such Grantor obtaining actual knowledge thereofGrantor’s Titled Collateral, it shall promptly notify and (B) deliver to the Collateral Agent in writing copies of all such applications or other documents that have been filed with respect to any event that would reasonably be expected Grantor’s Titled Collateral and copies of all such certificates of title issued with respect to have a Material Adverse Effect on any Grantor’s Titled Collateral indicating the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementsecurity interest created hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially and adversely changes the rights of such Grantor with respect to any Investment Related Property or adversely affects the validity, perfection or priority of the CollateralCollateral Trustee’s security interest, except Permitted Liens(b) permit any issuer of any Pledged Interest to issue any additional stock, and partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer, unless the same are pledged hereunder (c) other than as permitted under the Indenture, permit any issuer of any Pledged Interest to dispose of all or a material portion of their assets, (d) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Interest or the terms of any Pledged Debt, or (e) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; unless such Grantor shall defend the Collateral against all Persons at any time claiming any interest thereinhas fully complied with Section 4.04(b);
(ii) it shall not produce, use comply with all of its obligations under any partnership agreement or permit limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with respect to any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectInvestment Related Property;
(iii) unless permitted under the Indenture, it shall not change permit any issuer of any Pledged Interest to merge or consolidate unless (i) such Grantor’s nameissuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, identityand (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, corporate structure (e.g.limited liability company, by mergerpartnership or other entity is, upon such merger or consolidation, change pledged hereunder and no cash, securities or other property is distributed in corporate form respect of the outstanding equity interests of any other constituent Grantor; provided that if the surviving or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to resulting Grantor upon any such change merger or establishmentconsolidation involving an issuer which is a Controlled Foreign Corporation, identifying then such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information Grantor shall only be required to pledge equity interests in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;accordance with Section 2.02; and
(iv) if each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Collateral Agent or any other Secured Party gives value Trustee and, without limiting the foregoing, consents to enable Grantor to acquire rights in or the use transfer of any Collateral, it shall use such value for such purposes Pledged Partnership Interest and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except Pledged LLC Interest to the extent the validity thereof is being contested in good faith Collateral Trustee or its nominee following an Event of Default and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any substitution of the Collateral Trustee or its nominee as a result of the failure to make such payment;
(vi) upon such Grantor partner in any partnership or as a member in any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or limited liability company with all the rights and remedies of the Collateral Agent in relation powers related thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 2 contracts
Samples: Senior Notes Security Agreement (PRETIUM CANADA Co), Senior Notes Security Agreement (PRETIUM CANADA Co)
Covenants and Agreements. Each Grantor hereby Mortgagor covenants and agrees that:
(i) , except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any where a breach of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully following individually or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could aggregate (I) would not be reasonably be expected likely to have a Material Adverse Effect;
material adverse effect on Mortgagor's ability to perform its obligations pursuant to this Mortgage or (iiiII) it shall would not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering be reasonably likely to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on materially impair the value of the Collateral Mortgaged Property: (i) Mortgagor will not release any Polluting Substance on the Mortgaged Property or on any properties adjacent to the Mortgaged Property in material contravention of any applicable Environmental Law; (ii) Mortgagor will not become involved in operations at the Mortgaged Property involving unlawful use of Polluting Substances or any other activity that would violate any applicable Environmental Law or that would be reasonably likely to lead to the imposition on Mortgagor of liability under any Environmental Law; (iii) Mortgagor, at its sole cost and expense, will comply in all material portion thereof, respects with the ability requirements of all applicable Environmental Laws; (iv) Mortgagor will notify Mortgagee promptly in the event of the material presence (to the extent not known by Mortgagee at the time of the execution of the Purchase Agreements) or release of any Grantor Polluting Substance at or affecting the Collateral Agent to dispose of the Collateral or any Mortgaged Property in material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy contravention of any legal process against applicable Environmental Law and give to Mortgagee a copy of any notice of violations of any Environmental Law received by Mortgagor; (v) in the Collateral event any Polluting Substance is found at the Mortgaged Property in material contravention of any applicable Environmental Law, Mortgagor will ensure compliance with all applicable Environmental Laws with respect to the removal or remediation of such Polluting Substance; (vi) Mortgagor will keep the Mortgaged Property free and clear of any portion thereof;
lien imposed pursuant to any applicable Environmental Law; and (vii) it shall not take or permit Mortgagor will include in all future leases of any action which would reasonably be expected portion of the Mortgaged Property provisions requiring compliance with all Environmental Laws and reporting of information regarding such compliance to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementMortgagor and Mortgagee.
Appears in 2 contracts
Samples: Purchase Agreement (Edac Technologies Corp), Purchase Agreement (Edac Technologies Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted LiensEncumbrances, and such Grantor shall defend its title to the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Guarantee and Collateral Agreement Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen thirty (1530) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreementfaith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to may have a Material Adverse Effect on the value of the Collateral or any material portion thereofthereof having a value in excess of $250,000, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereofthereof having a value in excess of $250,000, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereofthereof having a value in excess of $250,000;
(vii) it shall not take or permit any action which would reasonably be expected to materially could impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementby means of Permitted Sales.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Joe's Jeans Inc.), Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants (a) Immediately prior to the Combination Closing, Xx. Xxxxxx shall execute and agrees that:deliver the D Closing Representation Letter to Company Split-Off Tax Counsel; provided, however, that Xx. Xxxxxx will be deemed to satisfy his obligation under this Section 6(a) in the event that (x) Liberty Expedia withholds its consent to any changes, updates or refinements to any representations made in the D Signing Representation Letter that Xx. Xxxxxx has reasonably requested to be made in the D Closing Representation Letter as may be necessary to reflect any changes in, or clarifications of, facts prior to the Combination Closing to the extent that similar or analogous changes, updates or refinements to representations reflecting the same changes in, or clarifications of, fact are made with respect to any other Closing Split-Off Tax Opinion Representation Letter or (y) Expedia Group or Liberty Expedia does not execute and deliver to Company Split-Off Tax Counsel immediately prior to the Combination Closing the Parent Closing Split-Off Tax Opinion Representation Letter or the Company Closing Split-Off Tax Opinion Representation Letter, respectively.
(ib) except for Xx. Xxxxxx will cooperate with Company Split-Off Tax Counsel by providing appropriate representations as to factual matters on the security interest created Closing Date, including the representations in the D Closing Representation Letter; provided, however, that Xx. Xxxxxx will be deemed to satisfy his obligation under this Section 6(b) in the event that (x) Liberty Expedia withholds its consent to any changes, updates or refinements to any representations made in the D Signing Representation Letter that Xx. Xxxxxx has reasonably requested to be made in the D Closing Representation Letter as may be necessary to reflect any changes in, or clarifications of, facts prior to the Combination Closing to the extent that similar or analogous changes, updates or refinements to representations reflecting the same changes in, or clarifications of, fact are made with respect to any other Closing Split-Off Tax Opinion Representation Letter or (y) Expedia Group or Liberty Expedia does not execute and deliver to Company Split-Off Tax Counsel immediately prior to the Combination Closing the Parent Closing Split-Off Tax Opinion Representation Letter or the Company Closing Split-Off Tax Opinion Representation Letter, respectively.
(c) The parties acknowledge that the transactions contemplated hereby would otherwise be subject to the restrictions in the Assigned and Amended Stockholders Agreement and Assigned Governance Agreement; therefore, each of Liberty Expedia and Xx. Xxxxxx (on behalf of themselves and their respective Stockholder Groups (as defined in the Assigned and Amended Stockholders Agreement)) hereby irrevocably waives any rights and obligations under the provisions of the Assigned and Amended Stockholders Agreement or the Assigned Governance Agreement applicable to the Exchange or the other transactions contemplated by this Agreement, it shall and, for the avoidance of doubt, acknowledges and agrees that the restrictions contained in the Assigned and Amended Stockholders Agreement and the Assigned Governance Agreement are not create or suffer to exist any Lien upon or with respect applicable to any of the Collateral, except Permitted Lienstransactions contemplated by the Merger Agreement.
(d) Xx. Xxxxxx acknowledges and agrees that the rights contemplated hereby and by the New Governance Agreement are deemed to be in recognition and in lieu of Xx. Xxxxxx’x rights under the Assigned Governance Agreement and the Assigned and Amended Stockholders Agreement.
(e) Liberty Expedia agrees to not convert, and such Grantor shall defend to cause the Collateral against all Persons Class B Stockholder to not convert, any shares of Parent Class B Common Stock into shares of Parent Common Stock under any circumstances at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date Combination Closing, including without limitation in connection with the delivery of Class B Exchange Shares at the Exchange Closing.
(f) Upon any proposed sale under any judgment, writ request from time to time by Liberty Expedia in contemplation of an Exchange Closing (or warrant of attachment entered or filed against such Grantor or any a closing of the Collateral as a result BD Exchange), if the conditions to Expedia Group’s obligation to effect the Combination Closing set forth in Article VI of the failure Merger Agreement shall have been satisfied or (if permissible) waived (other than those conditions that by their nature can only be satisfied at, or immediately prior to, the Combination Closing, provided that such conditions would be satisfied if the Combination Closing were to make such payment;occur at the time of the Exchange Closing), Expedia Group shall (as promptly as practicable, but no later than the same Business Day) deliver to Liberty Expedia and the other parties hereto the certificate required by Section 7(b)(ii) of this Agreement.
(vig) upon such Grantor Upon any request from time to time by Expedia Group in contemplation of an Exchange Closing (or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value closing of the Collateral BD Exchange), if the conditions to Liberty Expedia’s obligation to effect the Combination Closing set forth in Article VI of the Merger Agreement shall have been satisfied or any material portion thereof(if permissible) waived (other than those conditions that by their nature can only be satisfied at, or immediately prior to, the ability of any Grantor or Combination Closing, provided that such conditions would be satisfied if the Collateral Agent Combination Closing were to dispose occur at the time of the Collateral or any material portion thereofExchange Closing), or Liberty Expedia shall (as promptly as practicable, but no later than the rights same Business Day) deliver to Expedia Group and remedies the other parties hereto the certificate required by Section 7(b)(ii) of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit this Agreement.
Appears in 2 contracts
Samples: Exchange Agreement (Expedia Group, Inc.), Exchange Agreement (Liberty Expedia Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) except for without the security interest created by this Agreementprior written consent of the Collateral Agent, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially adversely affects the rights of such Grantor with respect to any of Investment Related Property or adversely affects the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s 's security interest, (b) permit any issuer of any Pledged Equity Interest to issue any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest in of any nature of such issuer, unless permitted by the Collateral intended Indenture or unless such interests are issued to be granted a Grantor and agreed such Grantor pledges such interests hereunder, (c) other than as permitted under the Indenture, permit any issuer of any Pledged Equity Interest to hereby;
dispose of all or a material portion of their assets, (ivd) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, if such default materially adversely affects the rights of the Collateral Agent with respect to any Collateral or (e) cause any other Secured Party gives value to enable Grantor to acquire rights in or the use issuer of any CollateralPledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC, it shall use such value for such purposes and unless such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected such election or action and, in such event, shall take all steps necessary or advisable to have a Material Adverse Effect on establish the value Collateral Agent's "control" thereof;
(2) it shall comply in all material respects with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its material rights with respect to any Investment Related Property;
(3) without the prior written consent of the Collateral or Agent, it shall not permit any material portion thereof, the ability issuer of any Pledged Equity Interest to merge or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Grantors; provided, that if the surviving or resulting Grantors upon any such merger or consolidation involving an issuer which is a Controlled Foreign Corporation, then such Grantor or shall only be required to pledge equity interests in accordance with Section 2 hereof; and
(4) each Grantor consents to the grant by each other Grantor of a security interest in all Investment Related Property to the Collateral Agent and, without limiting the foregoing, consents to dispose the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or any material portion thereof, or its nominee following an Event of Default and to the rights and remedies substitution of the Collateral Agent or its nominee as a partner in relation any partnership or as a member in any limited liability company with all the rights and powers related thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 2 contracts
Samples: Pledge and Security Agreement (MSW Energy Hudson LLC), Pledge and Security Agreement (Uae Ref Fuel Ii Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) except for without the security interest created by this Agreementprior written consent of the Secured Party, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially changes the rights of such Grantor with respect to any Investment Related Property or adversely affects the validity, perfection or priority of the CollateralSecured Party’s security interest, except Permitted Liens(b) permit any issuer of any Pledged Equity Interest to issue any additional stock, and partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such issuer, (c) other than as permitted under the Note Purchase Agreement, permit any issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, (d) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, or (e) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the foregoing in this clause (e), such Grantor shall defend promptly notify the Collateral against Secured Party in writing of any such election or action and, in such event, shall take all Persons at any time claiming any interest thereinsteps necessary or advisable to establish the Secured Party’s “control” thereof;
(ii2) it shall comply with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of its rights with respect to any Investment Related Property;
(3) without the prior written consent of the Secured Party, it shall not produce, use or permit any Collateral issuer of any Pledged Equity Interest to merge or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under Section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Grantors; provided that if the surviving or resulting Grantors upon any such merger or consolidation involving an issuer which is a controlled foreign corporation (as defined in the U.S. Internal Revenue Code of 1986, as amended), then such Grantor shall only be used unlawfully required to pledge equity interests in accordance with Section 2(b);
(4) each Grantor consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Secured Party or its designee following an Event of Default and to the substitution of the Secured Party or its designee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto;
(5) it shall notify the Secured Party of any default under any Pledged Debt that has caused, either in any case or in violation of any provision of this Agreement or any applicable statutethe aggregate, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;; and
(iii6) in the event it acquires rights in any Pledged Equity Interest or Pledged Debt after the date hereof, it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering deliver to the Collateral Agent Secured Party a completed Pledge Supplement, substantially in the form of Exhibit Annex A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying reflecting such new proposed namePledged Equity Interest or Pledged Debt and all other Pledged Equity Interest or Pledged Debt. Notwithstanding the foregoing, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name it is understood and providing such other information in connection therewith as agreed that the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority security interest of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value shall attach to enable Grantor to acquire all Pledged Equity Interest or Pledged Debt immediately upon any Grantor’s acquisition of rights in or the use of any Collateral, it therein and shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall not be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of affected by the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected deliver a supplement to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except Schedule III as otherwise permitted in accordance with the Credit Agreementrequired hereby.
Appears in 2 contracts
Samples: Pledge and Security Agreement (Xfit Brands, Inc.), Pledge and Security Agreement (Xfit Brands, Inc.)
Covenants and Agreements. Each Grantor hereby covenants The Company and agrees the Bank agree with each Underwriter that:
(ia) except for The Company and the security interest created by this AgreementBank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Underwriters, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Underwriters for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Underwriters reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Notes (as determined by the chronological order such Grantor acquired rights therein;
(vUnderwriters) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company or the Bank will promptly so notify the Underwriters and will prepare and furnish to the Underwriters, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value Each of the Collateral Company and the Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or any material portion thereofon behalf of, used by, or referred to by the ability of any Grantor Company or the Collateral Agent Bank and not to dispose use or refer to any proposed free writing prospectus to which you reasonably object.
(c) Except as otherwise contemplated pursuant to this Agreement, each of the Collateral or any material portion thereof, or Company and the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter, the Company or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Notes as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company or the Bank) to which Notes may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) Each of the Company and the Bank shall endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) Each of the Company and the Bank shall make generally available to the Bank’s security holders and to the Underwriters as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Notes have been sold by the Underwriters, prior to the third anniversary each of the Company and the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Notes to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) Each of the Company and the Bank shall prepare a final term sheet relating to the offering of the Notes, containing only information that describes the final terms of the Notes or the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Notes.
(j) The Bank will use its reasonable efforts, and shall cause the Company to use its reasonable efforts, to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Notes for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Notes are outstanding, each of the Bank and the Company will use its commercially reasonable efforts to maintain the listing of the Notes, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the Notes qualify as debt instruments (instrumentos de deuda) under Law 10/2014.
(l) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the public deed in respect of the Notes and disbursement minutes in respect of the Notes, if required, are registered in the Mercantile Registry of Madrid within one month of the Closing Date.
(m) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to permit the Notes to be eligible for clearance and settlement through the Depositary.
(n) From the date hereof and continuing to and including the Closing Date, the Bank will not, and shall ensure that the Company does not, without the Underwriters’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Notes and the Guarantees, except for the Bank’s customary deposit-raising activities.
(o) The Bank agrees that for as long as the Notes are outstanding it will maintain 100% ownership of the share capital of the Company, directly or indirectly.
(p) The Company confirms that this Agreement has been executed and delivered in the name of the Company by operation a signatory authorized by the Board of Directors of the Company and agrees that the Notes will be executed and delivered in the name of the Company, manually or via facsimile, by a signatory authorized by the Board of Directors of the Company.
(q) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank and agrees that the Guarantees will be executed and delivered in the name of the Bank, manually or via facsimile, by a signatory authorized by the Board of Directors or the Executive Committee of the Bank.
(r) If the Company or the Bank maintains a paying agent in respect of the Notes or the related Guarantees in a European Union member state, it will ensure that it maintains a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC or any directive amending, supplementing or replacing such directive (each, a “Directive”) or any law implementing or otherwisecomplying with, or introduced in order to conform to, such Directive or Directives.
(s) any Collateral except The Company will, so long as otherwise permitted in accordance the Notes are outstanding, permanently deposit the proceeds of the issuance of the Notes, net of management and issuance costs, with the Credit AgreementBank or a company of its consolidated group, which may use the proceeds for the general corporate purposes of the group.
Appears in 2 contracts
Samples: Underwriting Agreement (Santander Issuances, S.A. Unipersonal), Underwriting Agreement (Santander US Debt, S.A. Unipersonal)
Covenants and Agreements. Each Grantor Debtor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any partnership agreement, limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that materially changes the rights of such Debtor with respect to any Investment Related Property or adversely affects the validity, perfection or priority of Secured Party's security interest, (b) other than as permitted under the Indenture, permit any issuer of any Pledged Equity Interest to dispose of all or a material portion of their assets, (c) waive any default under or breach of any terms of organizational document relating to the issuer of any Pledged Equity Interest or the terms of any Pledged Debt, or (d) cause any issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the CollateralUCC) on the date hereof to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC; provided, except Permitted Lienshowever, and notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such Grantor action in violation of the foregoing in this clause (d), such Debtor shall defend the Collateral against promptly notify Secured Party in writing of any such election or action and, in such event, shall take all Persons at any time claiming any interest thereinsteps necessary or advisable to establish Secured Party's "control" thereof;
(ii) in the event it acquires rights in any Investment Related Property after the date hereof, it shall not produce, use or permit any Collateral deliver to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent Secured Party a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying reflecting such new proposed nameInvestment Related Property and all other Investment Related Property. Notwithstanding the foregoing, identityit is understood and agreed that the security interest of Secured Party shall attach to all Investment Related Property immediately upon any Debtor's acquisition of rights therein and shall not be affected by the failure of any Debtor to deliver a supplement to Schedule 4.4 as required hereby;
(iii) except as provided in the next sentence, corporate structurein the event such Debtor receives any dividends, sole place interest or distributions on any Investment Related Property, or any securities or other property upon the merger, consolidation, liquidation or dissolution of businessany issuer of any Investment Related Property, chief executive office then (a) such dividends, interest or jurisdiction distributions and securities or other property shall be included in the definition of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request without further action and (b) taken such Debtor shall immediately take all actions steps, if any, necessary or advisable to maintain ensure the continuous validityvalidity and perfection, perfection and priority and, if applicable, control of Secured Party over such Investment Related Property (including, without limitation, delivery thereof to Secured Party or Credit Facility Secured Party pursuant to the same or better priority terms of the Collateral Agent’s security interest Intercreditor Agreement to the extent then in effect) and pending any such action such Debtor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of Secured Party and shall be segregated from all other property of such Debtor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, Secured Party authorizes each Debtor to retain all ordinary cash dividends and distributions paid in the Collateral intended to be granted normal course of business and agreed to herebyall scheduled payments of interest;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes comply with all of its obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and such Grantor further agrees that repayment shall enforce all of its rights with respect to any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights thereinInvestment Related Property;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges not permit any issuer of any Pledged Equity Interest to merge or levies imposed uponconsolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, and (ii) all claims (including claims for laborthe outstanding capital stock or other equity interests of the surviving or resulting corporation, materials limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and supplies) againstno cash, securities or other property is distributed in respect of the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date outstanding equity interests of any proposed sale under other constituent company; provided that if the surviving or resulting company upon any judgmentsuch merger or consolidation involving an issuer which is a Controlled Foreign Corporation, writ or warrant of attachment entered or filed against then such Grantor or any of the Collateral as a result of the failure Debtor shall only be required to make such payment;pledge equity interests in accordance with Section 2.2; and
(vi) upon such Grantor or any Senior Officer each Debtor consents to the grant by each other Debtor of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent a security interest in writing of any event that would reasonably be expected all Investment Related Property to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementSecured Party.
Appears in 2 contracts
Samples: Indenture (Majestic Investor Capital Corp), Pledge and Security Agreement (Majestic Investor Capital Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer keep the Equipment, Inventory and any Documents evidencing any Equipment and Inventory in the locations specified on Schedule 2 annexed to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any Questionnaire (as such schedule may be amended or supplemented from time claiming any interest therein;
(iito time) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen thirty (1530) days prior to any such change or establishmentin locations, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name locations and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby, or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder, with respect to such Equipment and Inventory; provided, that notwithstanding anything to the contrary contained herein, (A) Grantors may remove Inventory from the locations specified on Schedule 2 annexed to the Collateral Questionnaire (x) for sales of Inventory in the ordinary course of business, (y) to move Inventory directly from one location specified on Schedule 2 annexed to the Collateral Questionnaire to another location specified on Schedule 2 annexed to the Collateral Questionnaire in the ordinary course of business and (z) to ship Inventory from the manufacturers thereof to a Grantor which Inventory is in transit to a location specified on Schedule 2 annexed to the Collateral Questionnaire and (B) Grantors may remove Equipment from the locations specified on Schedule 2 annexed to the Collateral Questionnaire (x) to the extent necessary to have any Equipment repaired or maintained in the ordinary course of business, (y) to move Equipment directly from one location specified on Schedule 2 annexed to the Collateral Questionnaire to another location specified on Schedule 2 annexed to the Collateral Questionnaire in the ordinary course of business and (z) with respect to the movement of motor vehicles used by or for the benefit of any Grantor in the ordinary course of business.
(ii) it shall keep correct and accurate records of the Inventory, itemizing and describing the kind, type and quantity of Inventory, such Grantor’s cost therefor and (where applicable) the current list prices for the Inventory, in each case, in reasonable detail as is customarily maintained by such Grantor;
(iii) it shall not deliver any Document evidencing any Equipment and Inventory to any Person other than the issuer of such Document to claim the Goods evidenced therefor or the Collateral Agent;
(iv) if any Equipment or Inventory valued in excess of $100,000 or more in the aggregate is in possession or control of any third party, each Grantor shall join with the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or notifying the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion third party of the value used to acquire rights in any Collateral shall be paid in Agent’s security interest and obtaining an acknowledgment from the chronological order such Grantor acquired rights therein;third party that it is holding the Equipment and Inventory for the benefit of the Collateral Agent; and
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except with respect to the extent the validity thereof any item of Equipment which is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date covered by a certificate of title under a statute of any proposed sale jurisdiction under any judgmentthe law of which indication of a security interest on such certificate is required as a condition of perfection thereof, writ or warrant of attachment entered or filed against such Grantor or any upon the reasonable request of the Collateral as a result Agent, (A) provide information with respect to any such Equipment in excess of $50,000 individually or $1,000,000 in the aggregate, (B) execute and file with the registrar of motor vehicles or other appropriate authority in such jurisdiction an application or other document requesting the notation or other indication of the failure security interest created hereunder on such certificate of title, and (C) deliver to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing copies of any event that would reasonably be expected to have a Material Adverse Effect on all such applications or other documents filed during such calendar quarter and copies of all such certificates of title issued during such calendar quarter indicating the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights security interest created hereunder in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation items of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementEquipment covered thereby.
Appears in 2 contracts
Samples: Pledge and Security Agreement (J Crew Group Inc), Pledge and Security Agreement (J Crew Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in material violation of any provision of this Agreement or any applicable material statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen ten (1510) days Business Days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Services International LLC)
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Representatives, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Representatives for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Representatives reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Securities (as determined by the chronological order such Grantor acquired rights therein;
(vRepresentatives) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Representatives and will prepare and furnish to the Representatives, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which an Underwriter reasonably be expected objects.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary, the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare final term sheets relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives and included herein as Exhibit D, and to file such final term sheets within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts to ensure that the Securities qualify as debt instruments (instrumentos de deuda) under Law 10/2014.
(l) The Bank will use its best efforts to ensure that the public deed in respect of the Securities and disbursement minutes in respect of the Securities, if required, are registered in the Mercantile Registry of Cantabria within one month of the Closing Date.
(m) The Bank will use its best efforts to comply at all times with the applicable requirements set out under Law 10/2014 in order to benefit from the tax treatment described in the First Additional Provision of Law 10/2014.
(n) From the date hereof and continuing to and including the Closing Date, the Bank will not, without the Representatives’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Securities, except for the Bank’s customary deposit-raising activities.
(o) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by operation a signatory authorized by the Executive Committee of law the Bank and agrees that the Securities will be executed and delivered in the name of the Bank, manually or otherwise) any Collateral except as otherwise permitted in accordance with via facsimile, by a signatory authorized by the Credit AgreementExecutive Committee of the Bank.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for without the security interest created by this Agreementprior written consent of the Collateral Agent, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or with respect to terminate any limited liability company agreement, certificate of incorporation, by-laws or other organizational documents in any way that adversely affects the validity, perfection or priority of the CollateralCollateral Agent's security interest, except Permitted Liens(b) waive any default under or the breach of any terms of any organizational document relating to the issuer of any Pledged Equity Interest in any way that adversely affects the validity, and perfection or priority of the Collateral Agent's security interest, or (c) cause any issuer of any Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged LLC Interests to be treated as securities for purposes of the UCC; PROVIDED, however, notwithstanding the foregoing, if any issuer of any Pledged LLC Interests takes any such action in violation of the -------- foregoing in this clause (c), such Grantor shall defend promptly notify the Collateral against Agent in writing of any such election or action and, in such event, shall take all Persons at any time claiming any interest thereinsteps necessary or advisable to establish the Collateral Agent's "control" thereof;
(ii) in the event it acquires rights in any Pledged Equity Interests after the date hereof, it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying reflecting such new proposed namePledged Equity Interests. Notwithstanding the foregoing, identity, corporate structure, sole place it is understood and agreed that the security interest of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request shall attach to all Pledged Equity Interests immediately upon any Grantor's acquisition of rights therein and shall not be affected by the failure of any Grantor to deliver a supplement to Schedule 3.2 as required hereby;
(iii) except as provided in the next sentence or in the Credit Agreement, in the event such Grantor receives any dividends, interest or distributions on any Pledged Equity Interest, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any issuer of any Pledged Equity Interest, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) taken such Grantor shall within 10 days take all actions steps, if any, necessary or advisable to maintain ensure the continuous validity, perfection perfection, priority and, if applicable, control of the Collateral Agent over such Pledged Equity Interests (including, without limitation, delivery thereof to the Collateral Agent) and pending any such action such Grantor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the same or better priority benefit of the Collateral Agent’s security interest in . Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral intended Agent authorizes each Grantor to be granted retain all ordinary cash dividends and agreed to herebydistributions and all payments of interest;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment comply with all of its obligations under any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used limited liability company agreement relating to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights thereinPledged LLC Interests;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, without the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any written consent of the Collateral as a result Agent, it shall not permit any issuer of any Pledged Equity Interest to merge or consolidate unless all the outstanding capital stock or other equity interests of the failure to make surviving or resulting corporation, limited liability company, partnership or other entity is, upon such payment;merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent company; and
(vi) upon such each Grantor or any Senior Officer consents to the grant by each other Grantor of such Grantor obtaining actual knowledge thereof, it shall promptly notify a security interest in all Pledged Equity Interests to the Collateral Agent in writing and, without limiting the foregoing, consents to the transfer of any event that would reasonably be expected Pledged Equity Interest to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent or its nominee following an Event of Default and to dispose of the Collateral or any material portion thereof, or the rights and remedies substitution of the Collateral Agent in relation or its nominee as a shareholder or member (as the case may be) with all the rights and powers related thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants 4.1 Given by DCU and agrees thatthe DCU Shareholders - DCU and the DCU Shareholders covenant and agree with the Issuer that it/they (as applicable) will:
(a) at Issuer's sole cost, permit representatives of the Issuer, at their own cost, reasonable access during normal business hours to DCU's Documents including, without limitation, all of the assets, contracts, financial records and minute books of DCU, so as to permit the Issuer to make such investigation of DCU as the Issuer deems reasonably necessary;
(b) at Issuer's sole cost, assist in the completion of any steps reasonably required in any other jurisdictions where DCU holds assets, which the Issuer may deem reasonably necessary to complete the Transaction;
(c) provide to the Issuer all such further documents, instruments and materials and do all such acts and things as may be reasonably required by the Issuer to seek the Regulatory Approval, including, without limiting the foregoing, all relevant information concerning it and its business, assets, operations and financial statements for inclusion in any public disclosure document to be prepared by the Issuer in connection with the Transaction;
(d) from and including the Effective Date through to and including the Time of Closing, preserve and protect the goodwill, assets and undertaking of DCU, carry on the Business of DCU in the ordinary course in a reasonable and prudent manner consistent with past practice;
(e) use its commercially reasonable efforts to obtain all required third party consents, Permits, approvals, authorizations, filings, assignments or waivers and amendments or terminations to any instrument or agreement and take such other measures as may be necessary to fulfil its obligations hereunder and to carry out the transactions contemplated by this Agreement, including obtaining any shareholder approvals, consents or agreements as may be required under applicable corporate laws, securities laws, the rules and policies of the Exchange and the constating documents of DCU to be able to fulfill its obligations hereunder and in connection with the delivery of all of the DCU Shares on Closing;
(f) co-operate with the Issuer, in the Issuer's efforts and at the Issuer's expense, to obtain the Regulatory Approval with respect to:
(i) the Transaction; and
(ii) such other documents as the Issuer may reasonably request in order to obtain the Regulatory Approval;
(g) comply with the terms hereof and faithfully and expeditiously seek to satisfy the conditions precedent set out Section 6.1 and 6.2 so as to close the Transaction and all related transactions by the Closing Date;
(h) from and including the Effective Date through to and including the Time of Closing, except for the security interest created by as set out in this Agreement, it shall not create enter into any agreement or suffer understanding with any other party to exist issue any Lien upon securities of DCU without the prior written consent of the Issuer, such consent not to be unreasonably withheld;
(i) from and including the Effective Date through to and including the Time of Closing, not directly or indirectly, solicit, initiate, assist, facilitate, promote or knowingly encourage the initiation of proposals or offers from, entertain or enter into negotiations with, any Person (other than the Issuer), with respect to any of the Collateralamalgamation, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form arrangement, restructuring, sale of any material assets or otherwise), sole place part thereof of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to herebyDCU;
(ivj) if make other necessary filings and applications under applicable, foreign, federal and provincial laws and regulations required on the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights part of it in or connection with the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights thereintransactions contemplated herein;
(vk) use its commercially reasonable efforts to conduct its affairs so that all of the representations and warranties of it contained herein shall pay promptly when due be true and correct in all property material respects on and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, as of the CollateralClosing Date as if made on the Closing Date, except to the extent the validity thereof is being contested in good faith that such representations and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior warranties require modification to give effect to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or transactions contemplated herein;
(1) notify the Issuer immediately upon becoming aware that any of the Collateral as a result representations or warranties of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent contained herein are no longer true and correct in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateralrespect; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 1 contract
Samples: Securities Exchange Agreement (Liquid Media Group Ltd.)
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Representatives, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Representatives for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Representatives reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Securities (as determined by the chronological order such Grantor acquired rights therein;
(vRepresentatives) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Representatives and will prepare and furnish to the Representatives, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which an Underwriter reasonably be expected objects.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary, the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare final term sheets relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives and included herein as Exhibit D, and to file such final term sheets within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts to ensure that the Securities qualify as debt instruments (instrumentos de deuda) under Law 10/2014.
(l) The Bank will use its best efforts to ensure that the public deed in respect of the Securities and disbursement minutes in respect of the Securities, if required, are registered in the Mercantile Registry of Cantabria within one month of the Closing Date.
(m) The Bank will use its best efforts to comply at all times with the applicable requirements set out under Law 10/2014 in order to benefit from the tax treatment described in the First Additional Provision of Law 10/2014.
(n) From the date hereof and continuing to and including the Closing Date, the Bank will not, without the Representatives’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Securities, except for the Bank’s customary deposit-raising activities.
(o) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by operation a signatory authorized by the Executive Committee of the Bank and agrees that the Securities will be executed and delivered in the name of the Bank, manually or via facsimile, by a signatory authorized by the Executive Committee of the Bank.
(p) If the Bank maintains a paying agent in respect of the Securities in a European Union member state, it will ensure that it maintains a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC or any directive amending, supplementing or replacing such directive (each, a “Directive”) or any law implementing or otherwise) any Collateral except as otherwise permitted complying with, or introduced in accordance with the Credit Agreementorder to conform to, such Directive or Directives.
Appears in 1 contract
Covenants and Agreements. Each Grantor In order to induce Agent and the Lenders to forbear from the exercise of its rights and remedies as set forth above, each Borrower Party hereby covenants and agrees thatwith Agent and the Lenders as follows:
(i) except 4.1. Each Borrower Party hereby acknowledges the intent of Lenders to engage, through Agent's counsel and for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any benefit of the CollateralLenders, except Permitted Liensa financial consultant. Each Borrower Party acknowledges and agrees that, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation accordance with Section 13.7 of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, all fees, costs and expenses of such Grantor financial consultant shall constitute a part of the Obligations that will be secured by the Collateral and shall be payable by Borrowers upon demand by Agent.
4.2. Each Borrower Party shall, upon reasonable notice from Agent, make each Borrower Party Representative available for meetings with any Lender Party, as may be reasonably requested by Agent. Each Borrower Party shall cooperate fully, and shall cause each Borrower Party Representative to cooperate fully, in furnishing information and taking such other actions as and when reasonably requested by any event pay Lender Party regarding such taxesBorrower Party's assets, assessmentsaffairs, chargesfinancial condition and operations. Each Borrower Party authorizes each Lender Party to meet and/or have discussions with any Borrower Party Representative from time to time to discuss any matters regarding such Borrower Party's assets, levies affairs, financial condition and operations, and shall direct and authorize, and hereby directs and authorizes, all such Borrower Party Representatives to fully disclose to such Lender Party all information reasonably requested by such Lender Party regarding such Borrower Party's assets, affairs, financial condition and operations. Each Borrower Party waives and releases any such Borrower Party Representative from the operation and provisions of any confidentiality agreement with such Borrower Party so that such Borrower Party Representative is not prohibited from providing information to any Lender Party. Each Borrower Party shall promptly, when and as requested by any Lender Party, provide such Lender Party with access to such Borrower Party's original books and records and permit such Lender Party to make copies thereof.
4.3. The Borrower Parties hereby acknowledge that, as provided in Section 7.14 of the Credit Agreement, no prepayment of interest on the Senior Notes is permitted.
4.4. No Borrower Party shall deposit into escrow with or claims not later than five (5) days otherwise transfer funds to any trustee for the holders of the Senior Notes prior to the date Termination Date for the purpose of making any proposed sale under any judgmentinterest payment when due on the Senior Notes.
4.5. No later than May 5, writ or warrant of attachment entered or filed against such Grantor or any 2004, and on each Business Day thereafter, the Borrowers shall deliver to Agent a Borrowing Base Certificate supporting the information delivered in accordance with Section 9 of the Collateral as a result Security Agreement.
4.6. No later than May 12, 2004, and on the first Business Day of each week thereafter, the Borrowers shall deliver to Agent, in form and substance satisfactory to Agent, an estimate of the failure Borrower Parties' accounts payable to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation theretoSalton Hong Kong Ltd., including, without limitation, the levy following information for each account payable: (a) origination date; and (b) due date.
4.7. No later than May 12, 2004, and on the first Business Day of any legal process against each week thereafter, the Collateral Borrowers shall deliver to Agent, in form and substance satisfactory to Agent, a projection of Availability for the period from the date of delivery of such projection through June 30, 2004, prepared on a day by day basis.
4.8. No later than May 12, 2004, and on the first Business Day of each week thereafter, the Borrowers shall deliver to Agent, in form and substance satisfactory to Agent, a cash flow projection of the Parent relative to the Parent's operations for the succeeding thirteen (13) week period, prepared on a day by day basis and comparing actual results with the cash flow projection for the immediately preceding week, including, without limitation, (a) a list of the intercompany transfers between the Parent, on the one hand, and its Subsidiaries, on the other hand, projected during such period and (b) as of the date of such projection, the balance of the $100,000,000 account payable owed by the Parent to Salton Hong Kong Ltd. and an anticipated schedule of repayment for such account payable balance.
4.9. No later than May 17, 2004, the Borrowers shall deliver to Agent, in form and substance satisfactory to Agent, financial forecasts (to include forecasted consolidated and consolidating balance sheets, income statements and cash flow statements) for the Parent and for the Borrowers as at the end of and for each Fiscal Month for the period from May 1, 2004, through December 31, 2004, including, without limitation, the projected Consolidated Fixed Charge Coverage Ratio and US Fixed Charge Coverage Ratio as of the end of each Fiscal Month during such period.
4.10. No later than May 17, 2004, and on the first Business Day of each week thereafter, the Borrowers shall deliver to Agent, in form and substance satisfactory to Agent, a list of the suppliers of Salton Hong Kong Ltd. and the obligations of Salton Hong Kong Ltd. to such suppliers, including, without limitation, the following information with respect to each supplier: (a) amount owed to such supplier; (b) payment terms of such amount; and (c) due date(s) of such amount.
4.11. No later than May 20, 2004, the Borrowers shall deliver to Agent, in form and substance satisfactory to Agent, a detailed written summary of the Borrowers' expense reduction plan.
4.12. No later than May 27, 2004, the Borrowers shall meet with Agent and the Lenders to explain, discuss and answer questions relating to the items delivered pursuant to Sections 4.9 and 4.11 hereof and such other matters as requested by Agent or any portion thereof;Lender.
4.13. The Borrowers hereby acknowledge that Agent has established a Reserve (viiin addition to those Reserves established by Agent prior to April 30, 2004) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights against Availability in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation amount of law or otherwise) any Collateral except as otherwise permitted $10,000,000 in accordance with the terms of the Credit Agreement and that such Reserve shall remain in place at the discretion of Agent.
4.14. The Borrowers shall pay to Agent, for the benefit of the Lenders according to their Pro Rata Shares, a non-refundable fee in the amount of $200,000 due and payable on the date hereof.
4.15. This Agreement is intended to be a further accommodation by Agent and the Lenders to Borrowers. In consideration of all such accommodations, and acknowledging that Agent and the Lenders will be specifically relying on the following provisions as a material inducement in entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Borrower Party, on behalf of itself and its shareholders and subsidiaries, hereby releases, remises and forever discharges Agent, the Lenders and their agents, servants, employees, directors, officers, attorneys, accountants, consultants, affiliates, representatives, receivers, trustees, subsidiaries, predecessors, successors and assigns (collectively, the "Released Parties") from any and all claims, damages, losses, demands, liabilities, obligations, actions and causes of action whatsoever (whether arising in contract or in tort, and whether at law or in equity), whether known or unknown, matured or contingent, liquidated or unliquidated, in any way arising from, in connection with, or in any way concerning or relating to the Credit Agreement., the other Loan Documents, and/or any dealings with any of the Released Parties in connection with the transactions contemplated by such documents or this Agreement prior to the execution of this Agreement. This release shall be and remain in full force and effect notwithstanding the discovery by any Borrower Party after the date hereof (i) of any new or additional claim against any Released Party, (ii) of any new or additional facts in any way relating to the subject matter of this release, (iii) that any fact relied upon by it was incorrect or (iv) that any representation made by any Released Party was untrue or that any Released Party concealed any fact, circumstance or claim relevant to such Borrower Party's execution of this release; provided, however, this release shall not extend to any claims arising after the execution of this Agreement in connection with the Credit Agreement and the other
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants The Company and agrees the Bank agree with each Underwriter that:
(ia) except for The Company and the security interest created by this AgreementBank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Underwriters, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Underwriters for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Underwriters reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Notes (as determined by the chronological order such Grantor acquired rights therein;
(vUnderwriters) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company or the Bank will promptly so notify the Underwriters and will prepare and furnish to the Underwriters, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value Each of the Collateral Company and the Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or any material portion thereofon behalf of, used by, or referred to by the ability of any Grantor Company or the Collateral Agent Bank and not to dispose use or refer to any proposed free writing prospectus to which you reasonably object.
(c) Except as otherwise contemplated pursuant to this Agreement, each of the Collateral or any material portion thereof, or Company and the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter, the Company or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Notes as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company or the Bank) to which Notes may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) Each of the Company and the Bank shall endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) Each of the Company and the Bank shall make generally available to the Bank’s security holders and to the Underwriters as soon as practicable an earnings statement covering a period of at least 12 months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Notes have been sold by the Underwriters, prior to the third anniversary each of the Company and the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Notes to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) Each of the Company and the Bank shall prepare a final term sheet relating to the offering of the Notes, containing only information that describes the final terms of the Notes or the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Notes.
(j) The Bank will use its reasonable efforts, and shall cause the Company to use its reasonable efforts, to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Notes for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Notes are outstanding, each of the Bank and the Company will use its commercially reasonable efforts to maintain the listing of the Notes, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that on or prior to the Closing Date the public deed in respect of the Notes is registered in the Mercantile Registry of Madrid, the announcement related to the issue of the Notes is published in the Official Gazette of the Mercantile Registry (Boletín Oficial del Registro Mercantil) and the número de operación financiera (N.O.F.) is obtained from the Bank of Spain.
(l) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the Notes qualify as debt instruments (instrumentos de deuda) under Law 13/1985.
(m) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the disbursement minutes in respect of the Notes are registered in the Mercantile Registry of Madrid.
(n) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to permit the Notes to be eligible for clearance and settlement through the Depositary.
(o) From the date hereof and continuing to and including the Closing Date, the Bank will not, and shall ensure that the Company does not, without the Underwriters’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Notes and the Guarantees, except for the Bank’s customary deposit-raising activities.
(p) The Bank agrees that for as long as the Notes are outstanding it will maintain 100% ownership of the share capital of the Company, directly or indirectly.
(q) The Company confirms that this Agreement has been executed and delivered in the name of the Company by operation a director of law the Company duly authorized by the Board of Directors of the Company and agrees that the Notes will be executed and delivered in the name of the Company, manually or otherwise) any Collateral except as otherwise permitted in accordance via facsimile (with the Credit Agreementapproval of the Board of Directors to use their facsimile signatures), by any signatory authorized by the Board of Directors of the Company.
(r) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank and agrees that the Guarantees will be executed and delivered in the name of the Bank, manually or via facsimile (with the approval of the Board of Directors to use their facsimile signatures), by any signatory authorized by the Executive Committee of the Bank.
(s) If the Company or the Bank maintains a paying agent in respect of the Notes or the related Guarantees in a European Union member state, it will ensure that it maintains a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26/27, 2000 (each, a “Directive”) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(t) The Company will, so long as the Notes are outstanding, permanently deposit the proceeds of the issuance of the Notes, net of management and issuance costs, with the Bank or a company of its consolidated group, which may use the proceeds for the general corporate purposes of the group.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants The Company and agrees the Bank agree with each Underwriter that:
(ia) except for The Company and the security interest created by this AgreementBank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Underwriters, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Underwriters for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Underwriters reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Notes (as determined by the chronological order such Grantor acquired rights therein;
(vUnderwriters) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Underwriters and will prepare and furnish to the Underwriters, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value Each of the Collateral Company and the Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or any material portion thereofon behalf of, used by, or referred to by the ability of any Grantor Company or the Collateral Agent Bank and not to dispose use or refer to any proposed free writing prospectus to which you reasonably object.
(c) Except as otherwise contemplated pursuant to this Agreement, each of the Collateral or any material portion thereof, or Company and the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter, the Company or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Notes as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company or the Bank) to which Notes may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) Each of the Company and the Bank shall endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) Each of the Company and the Bank shall make generally available to the Bank’s security holders and to the Underwriters as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Notes have been sold by the Underwriters, prior to the third anniversary each of the Company and the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Notes to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) Each of the Company and the Bank shall prepare a final term sheet relating to the offering of the Notes, containing only information that describes the final terms of the Notes or the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Notes.
(j) The Bank will use its reasonable efforts, and shall cause the Company to use its reasonable efforts, to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Notes for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Notes are outstanding, each of the Bank and the Company will use its commercially reasonable efforts to maintain the Listing of the Notes, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that prior to the Closing Date the public deed in respect of the Notes is registered in the Mercantile Registry of Madrid, the announcement related to the issue of the Notes is published in the Official Gazette of the Mercantile Registry (Boletín Oficial del Registro Mercantil) and the número de operación financiera (N.O.F.) is obtained from the Bank of Spain.
(l) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the Notes qualify as debt instruments (instrumentos de deuda) under Law 13/1985.
(m) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the disbursement minutes in respect of the Notes are registered in the Mercantile Registry of Madrid.
(n) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to permit the Notes to be eligible for clearance and settlement through the Depositary.
(o) From the date hereof and continuing to and including the Closing Date, the Bank will not, and shall ensure that the Company does not, without the Underwriters’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Notes and the Guarantees, except for the Bank's customary deposit-raising activities.
(p) The Bank agrees that for as long as the Notes are outstanding it will maintain 100% ownership of the share capital of the Company, directly or indirectly.
(q) The Company confirms that this Agreement has been executed and delivered in the name of the Company by operation a director of law the Company duly authorized by the Board of Directors of the Company and agrees that the Notes will be executed and delivered in the name of the Company, manually or otherwise) any Collateral except as otherwise permitted in accordance via facsimile (with the Credit Agreementapproval of the Board of Directors to use their facsimile signatures), by any signatory authorized by the Board of Directors of the Company.
(r) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank and agrees that the Guarantees will be executed and delivered in the name of the Bank, manually or via facsimile (with the approval of the Board of Directors to use their facsimile signatures), by any signatory authorized by the Executive Committee of the Bank.
(s) If the Company or the Bank maintains a paying agent in respect of the Notes or the related Guarantees in a European Union member state, it will ensure that it maintains a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26/27 November 2000 (each, a “Directive”) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(t) The Company will, so long as the Notes are outstanding, permanently deposit the proceeds of the issuance of the Notes, net of management and issuance costs, with the Bank or a company of its consolidated group, which may use the proceeds for the general corporate purposes of the group.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby
4.1 Given by Damon – Damon covenants and agrees thatwith Arizona that Damon will:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form permit representatives of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection Arizona and the same or better priority of the Collateral Agent’s security interest in the Collateral intended Arizona Shareholders full access during Damon's business hours to be granted Damon's property, books and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, records including, without limitation, all of the levy assets, contracts, financial records and minute books of any legal process against Damon, so as to permit such investigation of Damon as Arizona and the Collateral or any portion thereofArizona Shareholders deem reasonably necessary;
(viib) it shall from and including the Effective Date through to and including the Time of Closing, do all such acts and things reasonably necessary to ensure that all of the representations and warranties of Damon contained in this Agreement remain true and correct in all material respects and not take do any such act or permit thing that would render any action which would reasonably be expected to materially impair the Collateral Agent’s rights representation or warranty of Damon untrue or incorrect in the Collateral; andany material respect;
(viiic) it shall not selluse its reasonable commercial efforts to obtain all necessary shareholder and Regulatory Approvals as may be required for the performance of Damon of its obligations under this Agreement prior to the Closing, transfer or assign including approval of the TSXV of the Acquisition and the listing of the Resulting Issuer’s Shares on the TSXV;
(d) if required by operation the TSXV, retain a Sponsor to provide a sponsorship report to the TSXV in respect of law or otherwisethe Acquisition;
(e) any Collateral if required by the TSXV, retain a valuator to provide a valuation of Arizona;
(f) finance the preparation of the Title Opinion;
(g) finance the preparation of the Technical Report;
(h) complete the Name Change on Closing;
(i) from and including the Effective Date through to and including the Time of Closing, except as otherwise permitted set out in accordance this Agreement, not issue or reach any agreement or understanding with any other party to issue any securities without the prior written consent of Arizona;
(j) prior to Closing, it will expend its working capital towards its normal ongoing costs as a public company and towards the payment of all of its costs and fees incurred in connection with the Credit Acquisition and the other transactions contemplated by this Agreement; and
(k) comply with the terms of this Agreement and faithfully and expeditiously seek to close the Acquisition and related transactions by the Closing Date, or such other date prior to the Completion Deadline as may be requested by Arizona, acting reasonably.
Appears in 1 contract
Samples: Share Exchange Agreement
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Underwriters, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Underwriters for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Underwriters reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Contingent Capital Securities (as determined by the chronological order such Grantor acquired rights therein;
(vUnderwriters) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Underwriters and will prepare and furnish to the Underwriters, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which you reasonably be expected object.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Contingent Capital Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Contingent Capital Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Contingent Capital Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Contingent Capital Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Underwriters as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Contingent Capital Securities have been sold by the Underwriters, prior to the third anniversary the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Contingent Capital Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare a final term sheet relating to the offering of the Contingent Capital Securities, containing only information that describes the final terms of the Contingent Capital Securities or the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Contingent Capital Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Contingent Capital Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Contingent Capital Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Contingent Capital Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts to ensure that the public deed in respect of the Contingent Capital Securities and disbursement minutes in respect of the Contingent Capital Securities, if required, are registered in the Mercantile Registry of Cantabria within one month of the Closing Date.
(l) The Bank will use its best efforts to permit the Contingent Capital Securities to be eligible for clearance and settlement through the Depositary.
(m) From the date hereof and continuing to and including the Closing Date, the Bank will not without the Underwriters’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated contingent convertible capital securities issued by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Contingent Capital Securities, except for the Bank’s customary deposit-raising activities.
(n) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by operation a signatory authorized by the Board of Directors or the Executive Committee of the Bank and agrees that the Contingent Capital Securities will be executed and delivered in the name of the Bank, manually or via facsimile by a signatory authorized by the Board of Directors or the Executive Committee of the Bank.
(o) If the Bank maintains a paying agent in respect of the Contingent Capital Securities in a European Union member state, it will ensure that it maintains a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC or any directive amending, supplementing or replacing such directive (each, a “Directive”) or any law implementing or otherwise) any Collateral except as otherwise permitted complying with, or introduced in accordance with the Credit Agreementorder to conform to, such Directive or Directives.
Appears in 1 contract
Samples: Underwriting Agreement (Santander US Debt, S.A. Unipersonal)
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Representatives, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Representatives for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Representatives reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Securities (as determined by the chronological order such Grantor acquired rights therein;
(vRepresentatives) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Representatives and will prepare and furnish to the Representatives, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which an Underwriter reasonably be expected objects.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary, the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives and included herein as Exhibit D, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts to ensure that the Securities comply with the requirements set out under section 2 of the First Additional Provision of Law 10/2014.
(l) The Bank shall grant the Public Deed of Issuance prior to the Closing Date and shall use its best efforts to register it with the Mercantile Registry of Cantabria and file it as tax exempt of stamp duty (Impuesto sobre Trasmisiones Patrimoniales y Actos Jurídicos Documentados, en su modalidad de Actos Juridicos Documentados) within one month of the Closing Date.
(m) The Bank shall grant the Public Deed of Disbursement before a notary public supplementing the Public Deed of Issuance and use its best efforts to register it with the Mercantile Registry of Cantabria within one month of the Closing Date.
(n) The Bank shall, upon conversion of the Securities into Common Shares pursuant to a Trigger Event (as defined in the Prospectus), (i) grant the Public Deed of Issuance of the Common Shares issued upon such conversion and use its best efforts to register it with the Mercantile Registry of Cantabria, (ii) file such public deed as tax exempt of capital duty (Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados, en su modalidad de Operaciones Societarias), (iii) file such public deed with Iberclear, (iv) deliver full legal title to the Common Shares free of third party rights and (v) if the Bank’s shares are listed and admitted to trading at that time, apply for the listing and admission to trading of the Common Shares on the relevant stock exchanges and take all necessary steps so that the Common Shares are admitted to listing on the relevant stock exchanges as soon as possible.
(o) The Bank will use its best efforts to comply at all times with the applicable requirements set out under Law 10/2014 in order to benefit from the tax treatment described in the First Additional Provision of Law 10/2014.
(p) From the date hereof and continuing to and including the Closing Date, the Bank will not, without the Representatives’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated contingent convertible perpetual securities issued or guaranteed by the Bank and which are substantially similar to the Securities, except for the Bank’s customary deposit-raising activities.
(by operation q) The Bank shall not, during the period commencing on the date of law or otherwise) this Agreement and ending on the Closing Date, take any Collateral except as otherwise permitted action which, had the Securities then been in issue, would result in an adjustment to the Floor Price in accordance with the Credit AgreementProspectus.
(r) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by a signatory authorized by the Executive Committee of the Bank and agrees that the Securities will be executed and delivered in the name of the Bank, manually or via facsimile, by a signatory authorized by the Executive Committee of the Bank.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) Other than in the ordinary course of business as generally conducted by it, and except for as otherwise provided in subsection (3) below, after the security interest created by this Agreementoccurrence and during the continuation of any Event of Default, it such Grantor shall not create (w) grant any extension or suffer to exist renewal of the time of payment of any Lien upon Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon.
(2) If an Event of Default shall occur and be continuing, it shall mxxx conspicuously, in form and manner reasonably satisfactory to the Collateral Agent, all Chattel Paper, Instruments and other evidence of Receivables (other than any delivered to the Collateral Agent as provided herein), as well as the Receivables Records with an appropriate reference to the fact that the Collateral Agent has a security interest therein.
(3) At any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (x) direct the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (y) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (z) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in any account designated by the Collateral Agent and maintained under the sole dominion and control of the CollateralCollateral Agent, except Permitted Liensand until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall defend not adjust, settle or compromise the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use amount or permit any Collateral to be used unlawfully or in violation payment of any provision of this Agreement Receivable, or release wholly or partly any applicable statute, regulation Account Debtor or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion obligor thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of allow any legal process against the Collateral credit or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementdiscount thereon.
Appears in 1 contract
Samples: Pledge and Security Agreement (American Real Estate Partners L P)
Covenants and Agreements. Each Grantor The Mortgagor hereby covenants and agrees that:
(ia) it shall, on the date hereof, in accordance with the letter of authorization in the form set out in Schedule I procure that details of this Assignment be entered on the register of mortgages and charges of the Company (the “Register of Mortgages”) in accordance with Section 54 of the Companies Law (2007 Revision) of the Cayman Islands;
(b) it shall, at the Closing, deliver or procure to be delivered to the Collateral Agent a certified copy of the updated Register of Mortgages;
(c) except for the security interest created by this AgreementAssignment, it shall not create or suffer to exist any Lien upon or with respect to any of the Loan Collateral, except Permitted Liens, and such Grantor Mortgagor shall defend the Loan Collateral against all Persons persons at any time claiming any interest therein;
(iid) it shall not produce, permit any of its rights under the Intercompany Loan Agreement to be evidenced by an instrument;
(e) it shall not use or permit any Loan Collateral to be used unlawfully or in violation of any provision of this Agreement Assignment or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectLoan Collateral;
(iiif) it shall not change such Grantor’s its name, identity, corporate structure (e.g., e.g. by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (ai) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen thirty (1530) calendar days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (bii) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Loan Collateral granted or intended to be granted and agreed to hereby;
(ivg) if the Collateral Agent upon Mortgagor or any other Secured Party gives value to enable Grantor to acquire rights in or the use officer of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor Mortgagor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on may materially and adversely affect the value of the Loan Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent Mortgagor to dispose of the Loan Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent Mortgagor in relation thereto, including, without limitation, the levy of any legal process against the Loan Collateral or any portion thereof;
(viih) it shall not take or permit any action which would reasonably be expected to materially could impair the Collateral Agent’s rights in the Loan Collateral; and
(viii) it . For the avoidance of doubt, except as provided in Section 5(b), the Mortgagor shall not not, without the prior written consent of the Collateral Agent, sell, transfer transfer, alienate, or assign deal with, or agree (by operation conditionally or unconditionally) to sell, transfer, alienate or deal with any of law the Loan Collateral or otherwise) any Collateral except as otherwise permitted in accordance deal with the Credit AgreementLoan Collateral in any way contrary to the rights and interests of the Collateral Agent, the Trustee and the Holders of the Notes or take any action that could impair the enforceability of the rights of the Collateral Agent, the Trustee and the Holders of the Notes created under this Assignment.
Appears in 1 contract
Samples: Assignment of Intercompany Loan (7 Days Group Holdings LTD)
Covenants and Agreements. Each Grantor hereby covenants 8.1. Preparation of the Form S-4 and agrees that:the Joint Proxy Statement; Stockholders Meetings.
(ia) except for As soon as practicable following the security interest created by date of this Agreement, it the Company and Acquiror shall not create or suffer to exist any Lien upon or prepare and file with respect to any the SEC the Joint Proxy Statement and Acquiror thereafter shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the Collateral, except Permitted LiensCompany and Acquiror shall use their respective best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all best efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders, and such Grantor shall defend Acquiror will use all best efforts to cause the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral Joint Proxy Statement to be used unlawfully mailed to Acquiror's stockholders in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Acquiror shall also take any action required to be taken under any applicable state securities laws in connection with the issuance of Acquiror Common Stock in the Merger. No filing of, or in violation amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Acquiror without providing the Company the opportunity to review and comment thereon. Acquiror will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any provision stop order, the suspension of this Agreement the qualification of the Acquiror Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any applicable statute, regulation or ordinance or any policy of insurance covering request by the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority SEC for amendment of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in Joint Proxy Statement or the use of any Collateral, it shall use such value Form S-4 or comments thereon and responses thereto or requests by the SEC for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.additional
Appears in 1 contract
Covenants and Agreements. Each Grantor In consideration of the Lenders' agreements set forth herein, the Borrowers hereby agree as follows. The agreements set forth below shall be deemed to constitute covenants under the Loan Agreement. On or before the closing date, the Borrowers shall provide the following items to the Agent, all in form and agrees that:
content satisfactory to the Agent, and duly executed (iwhere applicable) except by all parties thereto: a Joinder Agreement pursuant to which NEC Acquisition Corp. (the surviving entity involved in the NEC Acquisition) shall become a "Borrower" for all purposes under the Loan Agreement; duly filed UCC financing statements which serve to perfect Agent's security interest created by this Agreement, it shall not create or suffer in all of NEC Acquisition Corp.'s personal property assets; a stock pledge agreement pursuant to exist any Lien upon or with respect to any which UNF pledges 100% of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral shares of NEC Acquisition Corp. to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached heretoAgent, together with all Supplements stock powers and stock certificates to Schedules thereto, at least fifteen (15) days prior to any perfect such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing pledge; such other information in connection therewith agreements as the Collateral may be required by Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection such as trademark security agreements and the same like) to ensure that Agent holds a duly perfected security interest in all of NEC Acquisition Corp.'s assets; a landlord's waiver for each location in which NEC Acquisition Corp. does business or better maintains assets; evidence satisfactory to Agent (including UCC, tax lien and similar search reports) that Agent holds a duly perfected, first priority of the Collateral Agent’s security interest in the Collateral intended assets of NEC Acquisition Corp., subject to be granted and agreed to hereby;
(iv) if no other Liens except as permitted under the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so Loan Agreement; confirmation that the portion bridge loan described in paragraph 4 of the value used Letter of Intent is no longer outstanding; evidence of corporate authorization of the transactions contemplated hereby, together with legal opinions on behalf of NEC Acquisition Corp. and the Borrowers Guarantors in scope consistent with the legal opinion delivered in connection with the Loan Agreement; updated casualty and liability insurance certificates with respect to acquire rights in any Collateral shall be paid NEC Acquisition Corp. and its assets, consistent with the requirements set forth in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Loan Agreement; provided, such Grantor shall and payment of the reasonable fees and expenses of Agent's counsel in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or connection with any of the Collateral as a result of transactions contemplated hereby. UNF shall compete the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted NEC Transaction substantially in accordance with the Credit Agreement.terms of the Letter of Intent without material amendment or waiver, not later than December 31, 2002. UNF agrees that Agent may complete a field exam with respect to the assets and liabilities of NEC, including without limitation, inventory and accounts, on or before the consummation of the NEC Transaction; and further agrees that if such a field exam is not completed by such date, Agent may, in its discretion, impose reserves or reduce advance rates with respect to NEC's inventory and accounts used for purposes of calculating the Borrowing Base, until such a field exam is completed. Representations and Warranties. The Borrowers hereby represent and warrant as follows:
Appears in 1 contract
Samples: Loan and Security Agreement (United Natural Foods Inc)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees with the Underwriters that:
(a) The Company will:
(i) except file, if required, the Prospectus and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, the Company (x) will comply with all requirements imposed upon it by the Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the respective rules and regulations of the Commission thereunder to the extent necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (y) will not file with the Commission the Base Prospectus or any amendment or supplement to such Base Prospectus (including the Prospectus or any Preliminary Prospectus), any amendment to the Registration Statement or any Free Writing Prospectus unless the Underwriters previously have been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing and the Underwriters shall have given their consent to such filing, which shall not be unreasonably withheld. The Company will prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Underwriters or counsel for the security interest created Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable, in the reasonable judgment of the Underwriters or their counsel, in connection with the distribution of the Securities by this Agreementthe Underwriters. The Company will advise the Underwriters, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or become effective or the Prospectus or any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Underwriters of each such filing or effectiveness.
(ii) without charge, provide (y) to the Underwriters and to their counsel, an executed and a conformed copy of the Original Registration Statement and each amendment thereto or any Rule 462(b) Registration Statement (in each case including exhibits thereto) and (z) so long as a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request.
(iii) advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof, of (w) the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Free Writing Prospectus or any amendment or supplement thereto, (x) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, (y) the institution, threatening or contemplation of any proceeding for any purpose identified in the preceding clause (w) or (x), or (z) any request made by the Commission for amending the Original Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(b) The Company will cooperate with the Underwriters in qualifying the Securities for offering and sale in each jurisdiction as the Underwriters shall designate including, but not limited to, pursuant to applicable state securities (“Blue Sky”) laws of certain states of the United States of America or other U.S. jurisdictions, and the Company shall maintain such qualifications in effect for so long as may be necessary in order to complete the placement of the Securities; provided, however, that the Company shall not be obliged to file any general consent to service of process or to qualify as a foreign corporation or as a securities dealer in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(c) The Company agrees that, unless it obtains the prior written consent of each Underwriter, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto, any electronic road show and term sheets relating to the Securities containing customary transaction announcement or pricing information. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. For the avoidance of doubt, Underwriter Free Writing Prospectuses that are not create required to be filed by the Company with the Commission or suffer retained by the Company under Rule 433 are permitted hereby.
(d) If, at any time prior to exist the final date when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any Lien event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the Securities Act, the Exchange Act or the Trust Indenture Act or the respective rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify the Underwriters thereof and will promptly, at its own expense, but subject to the second sentence of Section 3(a)(i) hereof: (x) prepare and file with the Commission an amendment to the Registration Statement or amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance; and (y) supply any amended Registration Statement or amended or supplemented Prospectus to the Underwriters in such quantities as the Underwriters may reasonably request. If there occurs an event or development as a result of which the Disclosure Package would include an untrue statement of material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will notify promptly the Underwriters so that any use of the Disclosure Package may cease until it is amended or supplemented. The foregoing two sentences do not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 11 hereof.
(e) The Company will make generally available to the Company’s securityholders and to the Underwriters as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act, including Rule 158 thereunder.
(f) The Company will apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the Prospectus.
(g) Neither the Company nor any of its affiliates, nor any person acting on behalf of any of them will, directly or indirectly, (i) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or (ii) (x) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (y) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(h) During a period of 30 days from the date of the Prospectus, the Company will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Securities Act with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
foregoing or (ii) it enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not produceapply to (A) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, use (B) any shares of Common Stock issued or permit options to purchase Common Stock granted pursuant to employee benefit plans or employment agreements of the Company approved by the Board of Directors of the Company, (C) any Collateral shares of Common Stock issued pursuant to be used unlawfully any non-employee dividend reinvestment plan or (D) any shares of Common Stock issued in violation mergers, acquisitions or other business combination transactions. Notwithstanding the foregoing, if (1) during the last 17 days of any provision of this Agreement the 30-day restricted period the Company issues an earnings release or any applicable statute, regulation material news or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering material event relating to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change Company occurs; or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any expiration of the Collateral as a result 30 day restricted period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the failure 30 day period, the restrictions imposed by this agreement shall continue to make such payment;
(vi) upon such Grantor apply until the expiration of the 18 day period beginning on the issuance of the earnings release or any Senior Officer the occurrence of such Grantor obtaining actual knowledge thereof, it the material news or material event. The Company shall promptly notify the Collateral Agent Representatives and each person subject to the 30 day restricted period pursuant to a lock-up agreement described in writing Section 7(i) hereof of any earnings release, news or event that would reasonably be expected may give rise to have a Material Adverse Effect on the value an extension of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementinitial 30 day restricted period.
Appears in 1 contract
Covenants and Agreements. Each Grantor In consideration of the Lenders' agreements set forth herein, the Borrowers hereby agree as follows. The agreements set forth below shall be deemed to constitute covenants under the Loan Agreement.
a. Within 30 days after the BPC Closing Date, the Borrowers agree to provide to Agent a landlord waiver and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer consent in form reasonably acceptable to exist any Lien upon or Agent with respect to any location listed on Supplemental Exhibit C hereto.
b. Within 3 days after the BPC Closing Date, the Borrowers shall provide to the Agent insurance certificates otherwise complying with the terms of the CollateralLoan Agreement and including all additional locations listed on Supplemental Exhibit C hereto.
c. Within 30 days after the BPC Closing Date, except Permitted Liens, and such Grantor UNF shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering provide to the Collateral Agent a completed Pledge Supplement, substantially in duly executed Mortgage and Security Agreement with respect to the form of Exhibit A attached heretoBPC Real Estate, together with a title insurance policy and survey or site plan, all Supplements reasonably acceptable to Schedules theretoAgent.
d. Within 15 days after the BPC Closing Date, at least fifteen (15) days prior UNF shall take such actions as may be necessary to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as ensure that the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s holds a duly perfected security interest in all notes, instruments and other investment property constituting a part of the Collateral intended assets purchased pursuant to be granted the BPC Transaction, including endorsing and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use delivering possession of any Collateralsuch property to Agent.
e. Within 30 days after the BPC Closing Date, it UNF shall use take such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so actions as may be necessary to ensure that the portion of Agent holds a duly perfected security interest in all registered trademarks purchased pursuant to the value used BPC Transaction, including such filings with the United States Patent and Trademark Office as may be required by Agent.
f. Within 30 days after the BPC Closing Date, UNF shall provide evidence that it is qualified to acquire rights in any Collateral shall be paid do business as a foreign corporation in the chronological order such Grantor acquired rights therein;state of each location listed on Supplemental Exhibit C.
(v) it g. UNF shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, complete the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted BPC Transaction substantially in accordance with the Credit Agreementterms of the Asset Purchase Agreement delivered pursuant to Section 4(b) hereof, without material amendment or waiver, not later than October 30, 2002.
h. UNF agrees that Agent shall complete a field exam with respect to the assets and liabilities of BPC, including without limitation, inventory and accounts, on or before the BPC Closing Date; and further agrees that if such a field exam is not completed by such date, Agent may, in its discretion, impose reserves or reduce advance rates with respect to inventory and accounts purchased from BPC and used for purposes of calculating the Borrowing Base, until such a field exam is completed.
Appears in 1 contract
Samples: Loan and Security Agreement (United Natural Foods Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i1) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and ;
(2) such Grantor shall use commercially reasonable efforts to defend the Collateral against all Persons at any time claiming any interest therein;
(ii3) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or of any Intellectual Property License or, to such Grantor's knowledge, any other contract covering such Collateral or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if unless such violation use could not reasonably be expected to have a Material Adverse Effect;
(iii4) it shall not change such Grantor’s 's name, identity, corporate structure (e.g., e.g. by merger, consolidation, change in corporate form or otherwise), sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Joint Collateral Agent in writing, by executing and delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit Annex A attached hereto, together with all Supplements to Schedules thereto, at least fifteen thirty (1530) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Joint Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Joint Collateral Agent’s 's security interest in the Collateral granted or intended to be granted and agreed to hereby;
(iv5) if it shall notify the Joint Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights quarterly, in or writing, of the use establishment of any Collateraltrade names and provide such other information in connection therewith as the Joint Collateral Agent may reasonably request and take all actions necessary or advisable to maintain the continuous validity, it shall use such value for such purposes perfection and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion same or better priority of the value used to acquire rights in any Joint Collateral shall be paid in the chronological order such Grantor acquired rights thereinAgent's security interest;
(v6) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreementfaith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days Business Days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi7) to the extent any such event may be reasonably expected to have a Material Adverse Effect, upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Joint Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on may materially and adversely affect the value of the Collateral or any material portion thereof, the ability of any Grantor or the Joint Collateral Agent to dispose of the Collateral or any material portion thereof
(8) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, or it shall promptly notify the Joint Collateral Agent in writing of any event that may materially and adversely affect the rights and remedies of the Joint Collateral Agent in relation theretoto any material Collateral, including, without limitation, the levy of any legal process against the Collateral or any material portion thereof;
(vii9) it shall not take or permit any action which would reasonably be expected to materially impair impairs the Joint Collateral Agent’s 's rights in the Collateral; and
(viii10) it shall not license out (other than in the ordinary course of business) sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise expressly permitted by the Indenture and in accordance with the Credit Agreementcompliance therewith.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except on or before the Effective Date, each Grantor shall (a) execute and deliver to the Collateral Agent, for each Collateral Deposit Account (other than the security interest created by this AgreementExcluded Accounts), it an agreement in form and substance acceptable to the Collateral Agent, pursuant to which (i) the Collateral Agent shall not create or suffer to exist any Lien upon or with respect to any have “control” (within the meaning of Section 9-104 of the Collateral, except Permitted LiensUCC) over such Collateral Deposit Account, and (ii) upon notice (a “Notice of Termination of Grantor’s Management Rights”) by the Collateral Agent to the bank where the Collateral Deposit Account is located, such bank shall no longer follow instructions of such Grantor but shall defend follow instructions only of the Collateral against Agent, and (b) establish lock box service (the “Lock Boxes”) with the bank(s) set forth on Schedule III under the heading “Lock Boxes”, which lock boxes shall be subject to irrevocable lockbox agreements in form and substance acceptable to the Collateral Agent and shall be accompanied by (i) an acknowledgment by the bank where the Lock Box is located of the Lien of the Collateral Agent granted hereunder and (ii) an agreement to, upon notice by the Collateral Agent to the bank where the Lock Box is located, wire all Persons amounts collected therein to the Collection Account (a “Lock Box Agreement”). The Collateral Agent shall give such Notices of Termination of Grantor’s Management Rights to the banks where the Collateral Deposit Accounts and Lock Boxes are located (i) in the event that, at any time claiming time, Availability is less than $35,000,000 and (ii) in its discretion, upon the occurrence of an Event of Default (any interest thereinsuch event, a “Dominion Event”);
(ii) it each Grantor shall not producedirect all of its Account Debtors to forward payments directly to Lock Boxes subject to Lock Box Agreements. The Collateral Agent shall have sole access to the Lock Boxes at all times and each Grantor shall take all actions necessary to grant the Collateral Agent such sole access. At no time shall any Grantor remove any item from a Lock Box or from a Collateral Deposit Account without the Collateral Agent’s prior written consent. If any Grantor should refuse or neglect to notify any Account Debtor to forward payments directly to a Lock Box subject to a Lock Box Agreement after notice from the Collateral Agent, use or permit the Collateral Agent shall, notwithstanding the language set forth in clause (v) of Section 4.3(b), be entitled to make such notification directly to the applicable Account Debtor. If notwithstanding the foregoing instructions, any Collateral to be used unlawfully or in violation Grantor receives any Proceeds of any provision Receivables Contract, such Grantor shall receive such payments as the Collateral Agent’s trustee, and shall immediately deposit all cash, checks or other similar payments related to or constituting payments made in respect of this Receivables Contracts received by it to a Collateral Deposit Account. After the occurrence of a Dominion Event, all funds deposited into any Lock Box subject to a Lock Box Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering a Collateral Deposit Account will be swept on a daily basis into a collection account maintained by the U.S. Borrowers with the Collateral if such violation could reasonably be expected to have a Material Adverse EffectAgent (the “Collection Account”). The Collateral Agent shall hold and apply funds received into the Collection Account as provided by the terms of Section 7.2;
(iii) it before opening or replacing any Collateral Deposit Account, other Deposit Account, or establishing a new Lock Box, each Grantor shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified obtain the Collateral Agent’s consent in writing to the opening of such Deposit Account or Lock Box, and (b) cause each bank or financial institution in which it seeks to open (i) a Deposit Account, to enter into a Deposit Account Control Agreement with the Collateral Agent in writing, by executing and delivering order to give the Collateral Agent “control” (within the meaning of Section 9-104 of the UCC) over such Deposit Account, or (ii) a completed Pledge SupplementLock Box, substantially in the form of Exhibit A attached hereto, together to enter into a Lock Box Agreement with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and in order to give the Collateral Agent “control” (b) taken all actions necessary or advisable to maintain within the continuous validity, perfection and the same or better priority meaning of Section 9-104 of the Collateral Agent’s security interest in UCC) over the Collateral intended Lock Box. In the case of Deposit Accounts or Lock Boxes maintained with Lenders, the terms of such Deposit Account Control Agreement or Lock Box Agreement shall be subject to be granted and agreed to hereby;the provisions of the Credit Agreement regarding setoffs; and
(iv) if All amounts deposited in the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral Collection Accounts shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify deemed received by the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value accordance with Section 2.20 of the Collateral or any material portion thereofCredit Agreement and shall, after having been credited in immediately available funds to the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereofCollection Account, or the rights be applied (and remedies of the allocated) by Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with Section 2.20 of the Credit Agreement. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
Appears in 1 contract
Samples: Pledge and Security Agreement (Progress Rail Services, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Representatives, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Representatives for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Representatives reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Securities (as determined by the chronological order such Grantor acquired rights therein;
(vRepresentatives) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Representatives and will prepare and furnish to the Representatives, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which an Underwriter reasonably be expected objects.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary, the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare final term sheets relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives and included herein as Exhibit D, and to file such final term sheets within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts to ensure that the Securities qualify as debt instruments (instrumentos de deuda) under the First Additional Provision of Law 10/2014.
(l) The Bank will use its best efforts to ensure that the public deed in respect of the Securities and disbursement minutes in respect of the Securities, if required, are registered in the Mercantile Registry of Cantabria within one month of the Closing Date.
(m) The Bank will use its best efforts to comply at all times with the applicable requirements set out under Law 10/2014 in order to benefit from the tax treatment described in the First Additional Provision of Law 10/2014.
(n) From the date hereof and continuing to and including the Closing Date, the Bank will not, without the Representatives’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Securities, except for the Bank’s customary deposit-raising activities.
(o) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by operation a signatory authorized by the Executive Committee of law the Bank and agrees that the Securities will be executed and delivered in the name of the Bank, manually or otherwise) any Collateral except as otherwise permitted in accordance with via facsimile, by a signatory authorized by the Credit AgreementExecutive Committee of the Bank.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants 10.1 [Intentionally Left Blank]
10.2 Seller agrees that it will, at any time and agrees that:from time to time, after the Closing, upon request of Buyer, do, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to convey and transfer to and vest in Buyer and protect its rights, title and interest in and enjoyment of all the Assets.
10.3 The parties hereto shall use their reasonable best efforts to obtain, and to cooperate with each other in obtaining, all authorizations, approvals, licenses, permits and other consents contemplated by Articles VIII and IX.
10.4 During the period from the date of this Agreement through the Closing Date, Seller will conduct its operation of the Business only in accordance with the Management Agreement and Seller shall not dispose of any of the assets of the Business, except as contemplated by the Management Agreement.
10.5 Seller shall afford to Buyer, its attorneys, accountants and such other representatives of Buyer as Buyer shall designate to Seller, free and full access at all reasonable times, and upon reasonable prior notice, to the Assets and the properties, books and records of Seller, and to interview personnel, suppliers and customers of Seller, in order that Buyer may have full opportunity to make such investigation as it shall reasonably desire of the Assets, the Liabilities and the Business. Seller shall allow an environmental consulting firm selected by Buyer (the "ENVIRONMENTAL AUDITOR") to have prompt access to the Real Property in order to conduct an environmental investigation, satisfactory to Buyer in scope (such scope being sufficient to result in a Phase I environmental audit report and a Phase II environmental audit report, if desired by Buyer), of, and to prepare a report with respect to, the Real Property (the "ENVIRONMENTAL AUDIT"). Seller shall provide to the Environmental Auditor: (i) except for reasonable access to all of its existing records concerning the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any matters which are the subject of the Collateral, except Permitted Liens, Environmental Audit; and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, reasonable access to the employees of Seller and the last known addresses of former employees of Seller who are most familiar with the matters which are the subject of the Environmental Audit (Seller agreeing to use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected reasonable efforts to have a Material Adverse Effect;such former employees respond to any reasonable requests or inquiries by the Environmental Auditor). Seller shall otherwise cooperate with the Environmental Auditor in connection with the Environmental Audit. Buyer shall bear 100% of the costs, fees and expenses in connection with the Environmental Audit.
10.6 All representations and warranties of Seller and the Stockholders shall survive the Closing Date. Seller and the Stockholders, jointly and severally, agree to indemnify and hold harmless Buyer and its stockholders, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (iiiincluding reasonable attorneys' fees and expert witness fees) it shall not change such Grantor’s nameincurred in connection therewith, identitysuffered by any of them or asserted against any of them or the Assets, corporate structure (e.g., by merger, consolidation, change in corporate form arising out of or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have based upon (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form failure of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change representation or establishment, identifying such new proposed name, identity, corporate structure, sole place warranty of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in Seller or the use of any CollateralStockholders contained herein, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights or in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxesagreement, assessments and governmental charges certificate or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor document executed by Seller or any of the Collateral Stockholders in connection herewith, to be true and correct in all material respects as a result of the failure to make such payment;
Inventory Date, (vib) upon such Grantor the breach of any covenant or agreement of Seller or any Senior Officer of the Stockholders contained in this Agreement, (c) any liability or obligation of Seller or any of the Stockholders not expressly assumed by Buyer pursuant to this Agreement, or (d) any arrangements or agreements made or alleged to have been made by Seller or any of the Stockholders with any broker, finder or other agent in connection with the transactions contemplated hereby. Notwithstanding the foregoing, the total indemnification obligations of the Seller and the Stockholders hereunder shall not exceed the Purchase Price.
10.7 All representations and warranties of Buyer shall survive the Closing Date. Buyer agrees to indemnify and hold harmless Seller and its stockholders, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them, or asserted against any of them, arising out of or based upon (a) the failure of any representation or warranty of Buyer contained herein, or in any agreement, certificate or document executed by Buyer in connection herewith, to be true and correct in all material respects as of the Closing Date, (b) the breach of any covenant or agreement of Buyer contained in this Agreement, or (c) the Liabilities.
10.8 Personal property, use and intangible taxes and assessments with respect to the Assets shall be prorated on a per diem basis and apportioned between Seller and Buyer as of the date of the Closing. Seller shall be liable for that portion of such Grantor obtaining actual knowledge thereoftaxes and assessments relating to, it or arising in respect of, periods on or prior to the Inventory Date, and Buyer shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, any period after the Inventory Date. Any taxes attributable to the sale or transfer of the Assets to Buyer hereunder shall be paid by Seller.
10.9 Except as may be required by law or the rules of the New York Stock Exchange or as necessary in connection with the transactions contemplated hereby, no party hereto shall (i) make any press release or other public announcement relating to this Agreement or the transactions contemplated hereby, without the prior approval of the other parties hereto or (ii) otherwise disclose the existence and nature of negotiations regarding the transactions contemplated hereby to any person or entity other than such party's accountants, attorneys, agents and representatives, all of whom shall be subject to this nondisclosure obligation as agents of such party. The parties shall cooperate with each other in the preparation and dissemination of any public announcements of the transactions contemplated by this Agreement.
10.10 Neither Seller nor any of the Stockholders shall pursue, initiate, encourage or engage in, any negotiations or discussions with, or provide any information to, any person or entity (other than Buyer and its representatives and affiliates) regarding the sale or possible sale to any such person or entity of any of the Assets or capital stock of Seller or any merger or consolidation or similar transaction involving Seller.
10.11 Buyer shall promptly notify apply for, or cause an affiliate of Buyer to apply for, the Collateral Agent in writing issuance of any event that would reasonably be expected a franchise to have operate a Material Adverse Effect on BMW dealership upon the value Real Property. Effective as of the Collateral or any material portion thereofClosing, Seller shall terminate its Dealer Sales and Service Agreements with BMW. Seller shall fully cooperate with Buyer, and take all reasonable steps to assist Buyer, in Buyer's efforts to obtain its own similar Dealer Sales and Service Agreements with BMW. The parties acknowledge that Buyer's Dealer Agreements are subject to the ability approval of any Grantor or the Collateral Agent BMW and that Buyer would be unable to dispose obtain its own, similar Dealer Sales and Service Agreement absent Seller's termination of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementits agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend keep and maintain at such Grantor’s own cost and expense, records of the Collateral against Receivables Contracts that are correct and accurate in all Persons at any time claiming any interest thereinmaterial respects so as to permit reporting required by Section 5.01(h) of the Credit Agreement;
(ii) it such Grantor shall perform in all material respects all of such Grantor’s obligations with respect to the Receivables Contracts except where the failure to do so does not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectEffect on the Borrowing Base, as reported in the most recently delivered Borrowing Base Certificate;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall not amend, modify, terminate or waive any provision of any Receivable Contract in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event manner that would could reasonably be expected to have a Material Adverse Effect on the value as Collateral of the Collateral or any material portion thereofReceivables Contracts, the ability taken as a whole, of any Grantor or Person who is an Account Debtor with respect to more than $1,000,000 of aggregate Receivables Contracts to the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereofGrantors;
(viiiv) it shall except as otherwise provided in this subsection and except as could not take or permit any action which would reasonably be expected to materially impair have a Material Adverse Effect, such Grantor shall continue to collect all amounts due or to become due to such Grantor under the Receivables Contracts and any Supporting Obligation and diligently exercise each material right such Grantor may have under any Receivables Contracts, any Supporting Obligation or Collateral Support, in each case, at such Grantor’s own expense; provided, that, notwithstanding the foregoing and subject to the terms, conditions and restrictions in the Intercreditor Agreement, the Administrative Agent shall have the right at any time following the occurrence and during the continuation of an Event of Default to notify, or require any Grantor to notify, any Account Debtor of the Administrative Agent’s security interest in the Receivables Contracts and any Supporting Obligation and, in addition, at any time following the occurrence and during the continuation of an Event of Default, the Administrative Agent may, upon notice to the Administrative Borrower and subject to the terms, conditions and restrictions in the Intercreditor Agreement: (1) direct the Account Debtors under any Receivables Contracts to make payment, of all amounts due or to become due to such Grantor thereunder directly to the Administrative Agent; (2) notify, or require any Grantor to notify, each Person maintaining a Lock Box or similar arrangement to which Account Debtors under any Receivables Contracts have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such Lock Box or other arrangement directly to the Administrative Agent; and (3) enforce, at the expense of such Grantor, collection of any such Receivables Contracts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done; provided further, that, if the Administrative Agent notifies any Grantor that the Administrative Agent has elected to collect the Receivables Contracts in accordance with the preceding sentence, any payments of Receivables Contracts received by such Grantor shall be forthwith (and in any event within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Administrative Agent if required, in the Collateral Account maintained under the sole dominion and control of the Administrative Agent’s rights , and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the CollateralReceivables Contracts, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Administrative Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivables Contract, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon; and
(viiiv) it such Grantor shall not sell, transfer use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or assign (by operation of law or otherwise) Collateral Support relating to any Collateral except as otherwise permitted in accordance with the Credit AgreementReceivables Contract that is necessary for such Receivables Contract to be an Eligible Account.
Appears in 1 contract
Samples: Pledge and Security Agreement (Talecris Biotherapeutics Holdings Corp.)
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Representatives, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Representatives for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Representatives reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Securities (as determined by the chronological order such Grantor acquired rights therein;
(vRepresentatives) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Representatives and will prepare and furnish to the Representatives, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which an Underwriter reasonably be expected objects.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary, the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare final term sheets relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives and included herein as Exhibit D, and to file such final term sheets within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank shall grant the Public Deed of Issuance prior to the Closing Date and shall use its best efforts to register it with the Mercantile Registry of Cantabria and file it as tax exempt of stamp duty (Impuesto sobre Trasmisiones Patrimoniales y Actos Jurídicos Documentados, en su modalidad de Actos Juridicos Documentados) within one month of the Closing Date.
(l) The Bank shall grant the Public Deed of Disbursement before a notary public supplementing the Public Deed of Issuance and use its best efforts to register it with the Mercantile Registry of Cantabria within one month of the Closing Date.
(m) The Bank shall, upon conversion of the Securities into Common Shares pursuant to a Trigger Event (as defined in the Prospectus), (i) grant the Public Deed of Issuance of the Common Shares issued upon such conversion and use its best efforts to register it with the Mercantile Registry of Cantabria, (ii) file such public deed as tax exempt of capital duty (Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados, en su modalidad de Operaciones Societarias), (iii) file such public deed with Iberclear, (iv) deliver full legal title to the Common Shares free of third-party rights and (v) if the Bank’s shares are listed and admitted to trading at that time, apply for the listing and admission to trading of the Common Shares on the relevant stock exchanges and take all necessary steps so that the Common Shares are admitted to listing on the relevant stock exchanges as soon as possible.
(n) The Bank will use its best efforts to comply at all times (and to ensure that the Securities comply with) with the applicable requirements set out under Law 10/2014 in order to benefit from the tax treatment described in the First Additional Provision of Law 10/2014.
(o) From the date hereof and continuing to and including the Closing Date, the Bank will not, without the Representatives’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated contingent convertible perpetual securities issued or guaranteed by the Bank and which are substantially similar to the Securities, except for the Bank’s customary deposit-raising activities.
(by operation p) The Bank shall not, during the period commencing on the date of law or otherwise) this Agreement and ending on the Closing Date, take any Collateral except as otherwise permitted action which, had the Securities then been in issue, would result in an adjustment to the Floor Price in accordance with the Credit AgreementProspectus.
(q) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by a signatory authorized by the Executive Committee of the Bank and agrees that the Securities will be executed and delivered in the name of the Bank, manually or via facsimile, by a signatory authorized by the Executive Committee of the Bank.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby of the Company and the Selling ------------------------------------------------------- Stockholders. ------------
(a) The Company covenants and agrees with the several Underwriters that:
(i) except for The Company will (A) if the security interest created by this Agreement, it shall Company and the Representatives have determined not create or suffer to exist any Lien upon or with respect proceed pursuant to any Rule 430A of the CollateralRules and Regulations, except Permitted Liensuse its best efforts to cause the Registration Statement to become effective, (B) if the Company and the Representatives have determined to proceed pursuant to Rule 430A of the Rules and Regulations, use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rule 430A and Rule 424 of the Rules and Regulations and (C) if the Company and the Representatives have determined to deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use its best efforts to comply with all the applicable provisions thereof. The Company will advise the Representatives promptly as to the time at which the Registration Statement becomes effective, will advise the Representatives promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such Grantor shall defend stop order and to obtain as soon as possible the Collateral against all Persons lifting thereof, if issued. The Company will advise the Representatives promptly of the receipt of any comments of the Commission or any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information and will not at any time claiming file any interest therein;amendment to the Registration Statement or supplement to the Prospectus which shall not previously have been submitted to the Representatives a reasonable time prior to the proposed filing thereof or to which the Representatives shall reasonably object in writing or which is not in compliance with the Securities Act and the Rules and Regulations.
(ii) it shall not produceThe Company will prepare and file with the Commission, promptly upon the request of the Representatives, any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may be necessary to enable the several Underwriters to continue the distribution of the Stock and will use or permit any Collateral its best efforts to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering cause the Collateral if such violation could reasonably be expected same to have a Material Adverse Effect;become effective as promptly as possible.
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place If at any time after the effective date of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering Registration Statement when a prospectus relating to the Collateral Agent Stock is required to be delivered under the Securities Act any event relating to or affecting the Company or any of its subsidiaries occurs as a completed Pledge Supplementresult of which the Prospectus or any other prospectus as then in effect would include an untrue statement of a material fact, substantially or omit to state any material fact necessary to make the statements therein, in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority light of the Collateral Agent’s security interest circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company will promptly notify the Representatives thereof and will prepare an amended or supplemented prospectus which will correct such statement or omission; and in case any Underwriter is required to deliver a prospectus relating to the Collateral intended Stock nine (9) months or more after the effective date of the Registration Statement, the Company upon the request of the Representatives and at the expense of such Underwriter will prepare promptly such prospectus or prospectuses as may be necessary to be granted and agreed to hereby;permit compliance with the requirements of Section 10(a)(3) of the Securities Act.
(iv) if The Company will deliver to the Collateral Agent Representatives, at or any other Secured Party gives value before the Closing Date, signed copies of the Registration Statement, as originally filed with the Commission, and all amendments thereto including all financial statements and exhibits thereto, and will deliver to enable Grantor the Representatives such number of copies of the Registration Statement, including such financial statements but without exhibits, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver or mail to acquire rights or upon the order of the Representatives, from time to time until the effective date of the Registration Statement, as many copies of the Preeffective Prospectus as the Representatives may reasonably request. The Company will deliver or mail to or upon the order of the Representatives on the date of the initial public offering, and thereafter from time to time during the period when delivery of a prospectus relating to the Stock is required under the Securities Act, as many copies of the Prospectus, in final form or as thereafter amended or supplemented as the use Representatives may reasonably request; provided, however, that the expense of the preparation and delivery of any Collateral, it shall prospectus required for use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that nine (9) months or more after the portion effective date of the value used to acquire rights in any Collateral Registration Statement shall be paid in borne by the chronological order Underwriters required to deliver such Grantor acquired rights therein;prospectus.
(v) The Company will make generally available to its Stockholders as soon as practicable, but not later than the 45th day following the end of the fiscal year occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the Securities Act, covering a period of at least twelve (12) months beginning after the "effective date" (as defined in Rule 158 under the Securities Act) of the Registration Statement.
(vi) The Company will cooperate with the Representatives to enable the Stock to be registered or qualified for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Representatives may reasonably designate and at the request of the Representatives will make such applications and furnish such consents to service of process or other documents as may be required of it as the issuer of the Stock for that purpose; provided, however, that the Company shall pay not be required to qualify to do business or to file a general consent (other than that arising out of the offering or sale of the Stock) to service of process in any such jurisdiction where it is not now so subject. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Stock to continue such qualifications in effect for so long a period as the Representatives may reasonably request for the distribution of the Stock. The Company will advise the Representatives promptly when due all property and other taxesafter the Company becomes aware of the suspension of the qualifications or registration of (or any such exception relating to) the Common Stock of the Company for offering, assessments and governmental charges sale or levies imposed upontrading in any jurisdiction or of any initiation or threat of any proceeding for any such purpose, and all claims (including claims for laborin the event of the issuance of any orders suspending such qualifications, materials and supplies) againstregistration or exception, the CollateralCompany will, except with the cooperation of the Representatives use its best efforts to obtain the withdrawal thereof.
(vii) The Company will furnish to its stockholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five (5) years from the date hereof, the Company will deliver to the Representatives and, upon request, to each of the other Underwriters concurrently with furnishing to its stockholders copies of each annual report of the Company and each other report furnished by the Company to its stockholders and will deliver to the Representatives, (A) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its stockholders as such, (B) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange and (C) from time to time such other information concerning the Company as you may reasonably request. So long as the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the validity thereof is being contested accounts of the Company and its subsidiaries are consolidated in good faith and reports furnished to its stockholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as otherwise provided defined in the Credit AgreementRules and Regulations.
(viii) The Company will file with the NASD all documents and notices required by the NASD of companies that have securities designated on the Nasdaq National Market and will use its best efforts to list, subject to official notice of effectiveness, on the Nasdaq National Market, the Stock to be issued and sold by the Company.
(ix) The Company will maintain a transfer agent and registrar for its Common Stock.
(x) Prior to filing its quarterly statements on Form 10- Q, the Company will have its independent auditors perform a limited quarterly review of its quarterly numbers; provided, however, that for -------- ------- one full year commencing the quarter immediately following the First Closing Date, such Grantor review shall be in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to accordance with standards and procedures as set forth in the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;Statement on Auditing Standards No. 71.
(vixi) upon such Grantor The Company will not, without the prior written consent of Xxxxx, offer, sell, assign, transfer, encumber, contract to sell, grant an option to purchase or otherwise dispose of, other than by operation of law, gifts, pledges or dispositions by estate representatives, any Senior Officer shares of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral Common Stock or any material portion thereof, the ability of any Grantor securities convertible into or the Collateral Agent to dispose of the Collateral exercisable or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, exchangeable for Common Stock (including, without limitation, Common Stock of the levy Company which may be deemed to be beneficially owned by the undersigned in accordance with the Rules and Regulations) during the 180 days following the date on which the Purchase Price is set, other than (A) the Company's sale of Common Stock hereunder, (B) the Company's issuance of an aggregate of 2,351,250 shares of Common Stock upon conversion of the Series A Convertible Preferred Stock and the Series B Convertible Preferred Stock simultaneously with the First Closing Date, (C) the Company's issuance of Common Stock upon the exercise of warrants and stock options which are presently outstanding and described in the Prospectus and (D) the Company's issuance of stock options under the 1997 Plan provided that none of such options vest prior to the expiration of such 180-day period.
(xii) The Company will apply the net proceeds from the sale of the Stock as set forth in the description under "Use of Proceeds" in the Prospectus, which description complies in all material respects with the requirements of Item 504 of Regulation S-K.
(xiii) The Company will supply you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Stock under the Securities Act.
(xiv) Prior to each Closing Date the Company will furnish to you, as soon as they have been prepared, copies of any legal process against unaudited interim consolidated financial statements of the Collateral Company and its subsidiaries, for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(xv) Prior to each Closing Date the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company or any portion of its subsidiaries, the financial condition, results of operation, business, prospects, assets or liabilities of any of them, or the offering of the Stock, without Xxxxx'x prior written consent. For a period of twelve (12) months following the latest Closing Date, the Company will use its best efforts to provide to you copies of each press release or other public communications with respect to the financial condition, results of operations, business, prospects, assets or liabilities of the Company concurrently with, or as soon as may reasonably be practicable after the issuance thereof;.
(viixvi) it shall During the period of five (5) years hereafter, the Company will furnish to the Representatives, and upon request of the Representatives, to each of the Underwriters: (A) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public accountants; (B) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, or the NASD or any securities exchange; and (C) as soon as available, copies of any report or communication of the Company mailed generally to holders of its Common Stock. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not take consolidated in the Company's financial statements.
(xvii) The Company will not take, directly or permit indirectly, any action which would designed to cause or result in, or that has constituted or might reasonably be expected to materially impair constitute, the Collateral Agent’s rights in stabilization or manipulation of the Collateral; andprice of any securities of the Company.
(viiixviii) it shall Without the prior written consent of Xxxxx, for a period of one year commencing on the date hereof, the Company will not sellgrant any options to purchase capital stock, transfer or assign a security convertible to capital stock, of the Company to any person or entity with an exercise or conversion price below 75% of the fair market value (as defined in Section 1 of the 1997 Plan) of the security issuable upon the exercise or conversion thereof.
(b) Each Selling Stockholder, severally and not jointly, covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock of the Company or other securities convertible, exchangeable or exercisable for shares of Common Stock or derivative of shares of Common Stock owned by operation such Selling Stockholder or request by such Selling Stockholder for the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by such Selling Stockholder otherwise than hereunder, as set forth in Section 8(m) herein or with the prior written consent of Xxxxx.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each Selling Stockholder agrees to the extent required by applicable law or otherwiseregulation to deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any Collateral except as otherwise permitted in accordance with action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the Credit Agreementstabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien Lien, other than Permitted Liens, upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall take commercially reasonable steps to defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not intentionally produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could the non-compliance with which would reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s legal name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office, type of organization or organization, jurisdiction of organization or establish any trade names organizational identification number unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen ten (1510) days prior to any such change or establishment, identifying such new proposed legal name, identity, corporate structure, sole place of businessbusiness (or principal residence if such Grantor is a natural person), chief executive office or office, jurisdiction of organization or trade name organizational identification number and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or reasonably advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral (other than Collateral in which a security interest cannot be perfected under the UCC or other applicable law) intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to could materially impair the Collateral Agent’s rights in the Collateral; and, except as permitted under the Credit Agreement or this Agreement or as would not have a Material Adverse Effect;
(viiiv) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral Collateral, except as otherwise permitted in accordance with under the Credit Agreement.Agreement or as would not have a Material Adverse Effect; and
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Tumi Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby (a) Notwithstanding that the Initial Warrants shall have been exercised and that any Additional Warrants shall immediately exercised upon issuance, the Parent promptly shall deliver to the Fund, at least five Business Days prior to effecting any transaction that would entitle the Fund to acquire any shares of Common Stock pursuant to this letter agreement, a notice thereof, together with a certificate, signed by the President or the Chief Executive Officer and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Parent, setting forth in reasonable detail the event entitling the Fund to acquire such shares of Common Stock, the number of such shares of Common Stock that the Fund is entitled to acquire and the method by which the number of such shares of Common Stock was calculated.
(b) The Parent covenants and agrees that all shares of Common Stock which may be issued pursuant to this letter agreement will be duly authorized, validly issued and fully paid and nonassessable, will be free and clear of any Liens, and will not be subject to any preemptive or similar rights that have not been waived.
(c) The Parent covenants and agrees that:, as promptly as practicable, and in any event within five Business Days after the issuance of any shares of Common Stock pursuant to this letter agreement, the Parent shall deliver or cause to be delivered certificates representing the number of validly issued, fully paid and nonassessable shares of Common Stock so issued. The Person entitled to receive such certificates shall be treated for all purposes as having been the record holder of the shares of Common Stock represented by such certificate at the time of issuance of such shares, notwithstanding that such certificate may not have been delivered at such time.
(id) except The Parent shall at all times reserve and keep available for issuance such number of its authorized but unissued shares of Common Stock as will from time to time be sufficient to permit the security interest created by issuance of all shares of Common Stock that may be issuable pursuant to this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liensletter agreement, and such Grantor shall defend take all action required to increase the Collateral against all Persons authorized number of shares of Common Stock if at any time claiming any interest therein;there shall be insufficient authorized but unissued shares of Common Stock to permit such reservation or to permit the issuance of all shares of Common Stock that may be issuable pursuant to this letter agreement.
(iie) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) The Parent covenants and agrees that it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the par value of the Collateral or any material portion thereof, Common Stock without the ability of any Grantor or the Collateral Agent to dispose prior written consent of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementFund.
Appears in 1 contract
Samples: Securities Purchase Agreement (1818 Fund Lp Brown Brothers Harriman Co Long T Michael Et Al)
Covenants and Agreements. Each Grantor hereby I. The Issuer Trustee covenants and agrees thatwith each of the several Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class A-1 Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall execute those of the Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure that the charges created by or contained in the Security Trust Deed are registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it knows or has reason to believe would result in the Class A-1 Notes not being assigned the ratings referred to in Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic Document nor execute any of the Basic Documents other than in the agreed form without the consent of the Underwriters;
(i) provided the Manager complies with Section 5.II.(r), the Issuer Trustee will:
(i) except for sign and deliver to the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any UK Listing Authority a listing application and copies of the Collateral, except Permitted Liens, and such Grantor shall defend Prospectus on or prior to the Collateral against all Persons at any time claiming any interest thereinClosing Date;
(ii) it ensure that the Prospectus shall not produce, use be approved as listing particulars by or permit any Collateral to be used unlawfully or in violation on behalf of any provision the UK Listing Authority as required by Section 144(2) of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;Financial Services Act and the Listing Rules; and
(iii) it ensure that two copies of the Prospectus shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering be delivered to the Collateral Agent a completed Pledge Supplement, substantially Registrar of Companies in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name England and providing such other information in connection therewith Wales for registration as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority required by Section 149 of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent Financial Services Act, on or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to before the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion publication thereof;
(viij) it shall not take to procure that if, after the Prospectus has been published and following the admission of the Class A-1 Notes to the Official List of the UK Listing Authority and admission of the Class A-1 Notes to trading on the London Stock Exchange:
(i) there is a significant change affecting any matter contained in the Prospectus the inclusion of which was required by Section 146 of the Financial Services Act or permit any action by the Listing Rules or by the UK Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information in respect of which would have been so required if it had arisen when the Prospectus was prepared, to notify the Representative on behalf of the Underwriters as soon as reasonably be expected practicable and, in accordance with the Listing Rules, to materially impair submit to the Collateral Agent’s rights in UK Listing Authority for its approval and, if approved, publish a supplement to the CollateralOffering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act, it will, before it issues any Class A-1 Note, seek a listing of the Class A-1 Notes on the Official List of the UK Listing Authority and the admission of the Class A-1 Notes to trading on the London Stock Exchange, and use its best efforts to maintain such listing for as long as any of the Class A-1 Notes are outstanding; provided, however, if such listing becomes impossible, to use their best efforts to obtain, and will thereafter use its best efforts to maintain a quotation for, or listing of, the Class A-1 Notes on such other exchange as is commonly used for the quotation or listing of debt securities as they may, with the approval of Xxxxxxx Xxxxx, decide; and
(viiil) in connection with the initial distribution of the Class A-2 Notes and the Class B Notes, it shall and each person acting on its behalf (other than the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the Dealer Agreement)) has not selland will not offer for issue, transfer or assign invite applications for the issue of, the Class A-2 Notes and the Class B Notes or offer the Class A-2 Notes and the Class B Notes for sale or invite offers to purchase the Class A-2 Notes and the Class B Notes to a person, where the offer or invitation is received by that person in Australia, unless the minimum amount payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after disregarding any amount lent by operation any of law the CBA Parties or otherwiseany associate (as determined under sections 10 to 17 of the Corporations Law) of any Collateral except as CBA Party) on acceptance of the offer by that person is at least A$500,000 or the offer or invitation otherwise permitted does not require disclosure to investors in accordance with the Credit Agreement.Part 6D.2
Appears in 1 contract
Samples: Underwriting Agreement (Securitisation Advisory Services Pty LTD 2000 Med Trust)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified Each Underwriter represents and warrants to and agrees with the Collateral Agent in writingTrust Manager that as of the date hereof and as of the Closing Date, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together such Underwriter has complied with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation theretoits obligations hereunder, including, without limitation, Section ___, and, with respect to all Computational Materials and ABS Term Sheets provided by such Underwriter to the levy Trust Manager pursuant to Section ____, if any, such Computational Materials and ABS Term Sheets are accurate in all material respects (taking into account the assumptions explicitly set forth in the Computational Materials or ABS Term Sheets, except to the extent of any legal process against errors therein that are caused by errors in the Collateral or information provided by any portion Westpac Party) and include all assumptions material to the preparation thereof. The Computational Materials and ABS Term Sheets provided by such Underwriter to the Trust Manager constitute a complete set of all Computational Materials and ABS Term Sheets delivered by such Underwriter to prospective investors that are required to be filed with the Commission.
(b) It is understood that each Underwriter may prepare and provide to prospective investors certain Computational Materials and ABS Term Sheets (each as defined below) in connection with its offering of the Notes, subject to the following conditions to be satisfied by such Underwriter:
(i) In connection with the use of Computational Materials, such Underwriter shall comply with all applicable requirements of the No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as made applicable to other issuers and underwriters by the Commission in response to the request of the Public Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as well as the PSA Letter referred to below. In connection with the use of ABS Term Sheets, such Underwriter shall comply with all applicable requirements of the No-Action Letter of February 17, 1995 issued by the Commission to the Public Securities Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action Letters");
(viiii) it For purposes hereof, "Computational Materials" as used herein shall not take or permit any action which would reasonably be expected to materially impair have the Collateral Agent’s rights meaning given such term in the Collateral; and
(viii) it No-Action Letters, but shall not sellinclude only those Computational Materials that have been prepared or delivered to prospective investors by or at the direction of any Underwriter. For purposes hereof, transfer "ABS Term Sheets" and "Collateral Term Sheets" as used herein shall have the meanings given such terms in the PSA Letter but shall include only those ABS Term Sheets or assign (Collateral Term Sheets that have been prepared or delivered to prospective investors by operation or at the direction of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.Underwriter;
Appears in 1 contract
Samples: Underwriting Agreement (Westpac Securitisation Management Pty LTD)
Covenants and Agreements. Each Grantor 1. Borrower hereby covenants agrees that more than 99% of the equity of DAC shall be acquired by Borrower and not more than 1% of the equity of DAC shall be acquired by Xxxx X. Xxxxxxxx, as nominal holder for the benefit of Borrower, within 30 days after the date of Closing (as such term is defined in the Spitfire Acquisition Agreement).
2. Borrower hereby agrees that:
, no later than August 31, 2012, Bank shall receive, at Borrower’s cost, an appraisal by Emerald Technology Valuations, LLC (i“ETV”) except for of the security interest created by this AgreementNet Orderly Liquidation Value – Existing Channels of selected raw materials and finished goods of Borrower, in form, substance and reflecting values satisfactory to Bank in its reasonable discretion. Borrower hereby further agrees that it shall not create or suffer provide access to exist any Lien upon or ETV to the premises of Borrower and the selected locations where such raw materials and finished goods are stored for such reasonable period of time as ETV shall require to complete its inspection.
3. Borrower hereby agrees to deliver to Bank a landlord waiver agreement with respect to any each collateral location being added to the Loan Documents pursuant to this Amendment, in form and substance satisfactory to Bank, no later than 30 days after the date hereof.
4. Borrower hereby agrees to deliver to Bank a duly authorized and executed equitable mortgage over 65% of all of the Collateralissued shares in Cayman, except Permitted Liensin form and substance satisfactory to Bank and executed by Borrower, along with the original share certificate evidencing such equity interest, an undated share transfer form for such share for such certificate duly executed in blank by the registered owner thereof, and such Grantor other documents and deliverables as Bank and Borrower shall defend agree, all no later than 30 days after the Collateral against all Persons at any time claiming any interest therein;Closing.
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of 5. Notwithstanding any provision of this Agreement the Credit Agreement, the Line of Credit Note or any applicable statutethe Term Note to the contrary, regulation or ordinance or any policy Bank hereby consents to the issuance by Borrower of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially no more than fifty thousand (50,000) shares of its common stock in the form of Exhibit A attached heretoaggregate as partial consideration in exchange for the assets being acquired by Borrower as contemplated in the Spitfire Acquisition Agreement and in accordance with the terms thereof, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority no more than twenty-five thousand (25,000) shares of the Collateral Agent’s security interest its common stock in the Collateral intended aggregate as partial consideration to be granted Xxxxx Xxxxxxxxx in connection with his employment by Borrower after the Closing. Bank hereby acknowledges that Borrower will not receive any cash proceeds from the issuance of Borrower’s stock as described in this paragraph and agreed to hereby;
(iv) if the Collateral Agent or waives any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in default arising under the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies the Line of Credit Note or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral Term Note as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer issuance of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent Borrower’s stock as described in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementthis paragraph.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby A deviation from the provisions of this Article IV shall not constitute a default under this Security Agreement if such deviation is consented to in writing by Secured Party. Without the prior written consent of Secured Party, Debtor will at all times comply with the covenants contained in this Article IV, from the date hereof and agrees that:
for so long as any part of the Secured Obligations is outstanding. Debtor recognizes that one or more financing statements pertaining to the Collateral provided by Debtor will be filed in one or more filing offices. Debtor will promptly notify Secured Party of any condition or event that may change the proper location for the filing of any financing statements or other public notice or recordings for the purpose of perfecting a security interest in the Collateral. Without limiting the generality of the foregoing, Debtor will (a) promptly notify Secured Party of any change (i) except for in the security interest created by this Agreementlocation of the office where such Debtor keeps its records concerning its Accounts or (ii) in the "location" of such Debtor within the meaning set forth in the Code or the jurisdiction in which Debtor is incorporated, it shall not create organized or suffer to exist any Lien upon or with respect formed; (b) prior to any of the CollateralCollateral provided by Debtor becoming so related to any particular real estate so as to become a fixture on such real estate, except Permitted Liensnotify Secured Party of the description of such real estate and the name of the record owner thereof, to the extent such real estate is not already encumbered in favor or for the benefit of Secured Party to secure the Secured Obligations; and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(iic) it shall not produce, use or permit any Collateral to be used unlawfully or in violation promptly notify Secured Party of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s in Debtor's name, identityidentity or structure. In any notice furnished pursuant to this paragraph, corporate structure (e.g., Debtor will expressly state that the notice is required by merger, consolidation, change in corporate form this Security Agreement and contains facts that will or otherwise), sole place may require additional filings of business, chief executive office, type financing statements or other notices for the purpose of organization or jurisdiction continuing perfection of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s Secured Party's security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Collateral. Further, Debtor authorizes Secured Party gives value to enable Grantor file, at the expense of such Debtor, any and all financing statements, pursuant to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion Article 9 of the value used to acquire rights Code, as Secured Party deems necessary, in any Collateral shall be paid its sole discretion, in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance conjunction with the Credit this Security Agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor Pledgor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create vote to enable or suffer to exist take any Lien upon other action to: (a) amend or terminate any limited liability company agreement or other organizational documents in any way that materially changes the rights of Pledgor with respect to any Pledged LLC Interests or adversely affects the validity, perfection or priority of Secured Party's security interest, (b) other than as permitted under the CollateralIndenture, except Permitted Lienspermit Company to dispose of all or a material portion of its assets, and such Grantor shall defend the Collateral against all Persons at or (c) waive any time claiming default under or breach of any interest thereinterms of organizational document relating to Company;
(ii) in the event it acquires rights in any Pledged LLC Interests after the date hereof, it shall not produce, use or permit any Collateral deliver to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent Secured Party a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying reflecting such new proposed namePledged LLC Interests and all other Pledged LLC Interests. Notwithstanding the foregoing, identityit is understood and agreed that the security interest of Secured Party shall attach to all Pledged LLC Interests immediately upon Pledgor's acquisition of rights therein and shall not be affected by the failure of Pledgor to deliver a supplement to Schedule 4.2 as required hereby;
(iii) except as provided in the next sentence, corporate structurein the event Pledgor receives any dividends, sole place interest or distributions on any Pledged LLC Interests, or any securities or other property upon the merger, consolidation, liquidation or dissolution of businessany issuer of any Pledged LLC Interests, chief executive office then (a) such dividends, interest or jurisdiction distributions and securities or other property shall be included in the definition of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request without further action and (b) taken Pledgor shall immediately take all actions steps, if any, necessary or advisable to maintain ensure the continuous validityvalidity and perfection, perfection and priority and, if applicable, control of Secured Party over such Pledged LLC Interests (including, without limitation, delivery thereof to Secured Party or Credit Facility Secured Party pursuant to the same or better priority terms of the Collateral Agent’s security interest Intercreditor Agreement to the extent then in effect) and pending any such action Pledgor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of Secured Party and shall be segregated from all other property of Pledgor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, Secured Party authorizes Pledgor to retain all ordinary cash dividends and distributions paid in the Collateral intended to be granted normal course of business and agreed to herebyall scheduled payments of interest;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes comply with all of its obligations under any limited liability company agreement relating to Pledged LLC Interests and such Grantor further agrees that repayment shall enforce all of its rights with respect to any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;Pledged LLC Interests; and
(v) it shall pay promptly when due not permit Company to merge or consolidate unless (i) Company creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, is distributed in respect of the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date outstanding equity interests of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any other constituent company and (iii) permitted by the terms of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementIndenture.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees with the Underwriters that:
(a) The Company will:
(i) except for use its best efforts to cause the security interest created by Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto to become effective as promptly as possible. If required, the Company will file the Prospectus and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, the Company (x) will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, and the respective rules and regulations of the Commission thereunder to the extent necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (y) will not file with the Commission the Base Prospectus or any amendment or supplement to such Base Prospectus (including the Prospectus or any Preliminary Prospectus), any amendment to the Registration Statement or any Rule 462(b) Registration Statement or any Free Writing Prospectus unless the Underwriters previously have been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing and the Underwriters shall have given their consent to such filing, which shall not be unreasonably withheld. The Company will prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Underwriters or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable, in the reasonable judgment of the Underwriters or their counsel, in connection with the distribution of the Securities by the Underwriters. The Company will advise the Underwriters, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus or any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Underwriters of each such filing or effectiveness.
(ii) without charge, provide (y) to the Underwriters and to their counsel, an executed and a conformed copy of the Original Registration Statement and each amendment thereto or any Rule 462(b) Registration Statement (in each case including exhibits thereto) and (z) so long as a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Underwriters may reasonably request.
(iii) advise the Underwriters, promptly after receiving notice or obtaining knowledge thereof, of (w) the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any amendment thereto or any Rule 462(b) Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Free Writing Prospectus or any amendment or supplement thereto, (x) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, (y) the institution, threatening or contemplation of any proceeding for any purpose identified in the preceding clause (w) or (x), or (z) any request made by the Commission for amending the Original Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(b) The Company will cooperate with the Underwriters in qualifying the Securities for offering and sale in each jurisdiction as the Underwriters shall designate including, but not limited to, pursuant to applicable state securities (“Blue Sky”) laws of certain states of the United States of America or other U.S. jurisdictions, and the Company shall maintain such qualifications in effect for so long as may be necessary in order to complete the placement of the Securities; provided, however, that the Company shall not be obliged to file any general consent to service of process or to qualify as a foreign corporation or as a securities dealer in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(c) The Company agrees that, unless it obtains the prior written consent of each Underwriter, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. For the avoidance of doubt, Underwriter Free Writing Prospectuses that are not required to be filed by the Company with the Commission or retained by the Company under Rule 433 are permitted hereby.
(d) If, at any time prior to the final date when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it shall be necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the Securities Act or the Exchange Act, or the respective rules or regulations of the Commission thereunder or applicable law, the Company will promptly notify the Underwriters thereof and will promptly, at its own expense, but subject to the second sentence of Section 3(a)(i) hereof: (x) prepare and file with the Commission an amendment to the Registration Statement or amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance; and (y) supply any amended Registration Statement or amended or supplemented Prospectus to the Underwriters in such quantities as the Underwriters may reasonably request. If there occurs an event or development as a result of which the Disclosure Package would include an untrue statement of material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not create misleading, the Company will notify promptly the Underwriters so that any use of the Disclosure Package may cease until it is amended or suffer supplemented. The foregoing two sentences do not apply to exist statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Lien upon Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 11 hereof.
(e) The Company will make generally available to the Company’s securityholders and to the Underwriters as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act, including Rule 158 thereunder.
(f) The Company will apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the Prospectus.
(g) Neither the Company nor any of its affiliates, nor any person acting on behalf of any of them will, directly or indirectly, (i) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or (ii) (x) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (y) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(h) During a period of 60 days from the date of the Prospectus, the Company will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Securities Act with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
foregoing or (ii) it enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not produce, use or permit any Collateral apply to (A) the Securities to be used unlawfully sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in violation the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to employee benefit plans or employment agreements of the Company approved by the Board of Directors of the Company, (D) any provision shares of this Agreement Common Stock issued pursuant to any non-employee dividend reinvestment plan or (E) any applicable statuteshares of Common Stock issued in mergers, regulation acquisitions or ordinance other business combination transactions. Notwithstanding the foregoing, if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or any policy of insurance covering the Collateral if such violation could reasonably be expected to have material news or a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering material event relating to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change Company occurs; or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any expiration of the Collateral as a result 60 day restricted period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the failure 60 day period, the restrictions imposed by this agreement shall continue to make such payment;
(vi) upon such Grantor apply until the expiration of the 18 day period beginning on the issuance of the earnings release or any Senior Officer the occurrence of such Grantor obtaining actual knowledge thereof, it the material news or material event. The Company shall promptly notify the Collateral Agent Representatives and each person subject to the 60 day restricted period pursuant to a lock-up agreement described in writing Section 7(h) hereof of any earnings release, news or event that would reasonably be expected may give rise to have a Material Adverse Effect on the value an extension of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementinitial 60 day restricted period.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and The Bank agrees with each Underwriter that:
(ia) except for the security interest created by this AgreementThe Bank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Representatives, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Representatives for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Representatives reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Securities (as determined by the chronological order such Grantor acquired rights therein;
(vRepresentatives) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Bank will promptly so notify the Representatives and will prepare and furnish to the Representatives, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor The Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Bank and not to use or refer to any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in proposed free writing of any event that would prospectus to which an Underwriter reasonably be expected objects.
(c) Except as otherwise contemplated pursuant to have a Material Adverse Effect on the value of the Collateral or any material portion thereofthis Agreement, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Bank) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) The Bank shall endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) The Bank shall make generally available to the Bank’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary, the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) The Bank shall prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives and included herein as Exhibit D, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(j) The Bank will use its reasonable efforts to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Securities for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Securities are outstanding, the Bank will use its commercially reasonable efforts to maintain the listing of the Securities, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts to ensure that the Securities comply with the requirements set out under section 2 of the First Additional Provision of Law 10/2014.
(l) The Bank shall grant the Public Deed of Issuance prior to the Closing Date and shall use its best efforts to register it with the Mercantile Registry of Cantabria and file it as tax exempt of stamp duty (Impuesto sobre Trasmisiones Patrimoniales y Actos Jurídicos Documentados, en su modalidad de Actos Juridicos Documentados) within one month of the Closing Date.
(m) The Bank shall grant the Public Deed of Disbursement before a notary public supplementing the Public Deed of Issuance and use its best efforts to register it with the Mercantile Registry of Cantabria within one month of the Closing Date.
(n) The Bank shall, upon conversion of the Securities into Common Shares pursuant to a Trigger Event (as defined in the Prospectus), (i) grant the Public Deed of Issuance of the Common Shares issued upon such conversion and use its best efforts to register it with the Mercantile Registry of Cantabria, (ii) file such public deed as tax exempt of capital duty (Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados, en su modalidad de Operaciones Societarias), (iii) file such public deed with Iberclear, (iv) deliver full legal title to the Common Shares free of third party rights and (v) if the Bank’s shares are listed and admitted to trading at that time, apply for the listing and admission to trading of the Common Shares on the relevant stock exchanges and take all necessary steps so that the Common Shares are admitted to listing on the relevant stock exchanges as soon as possible.
(o) The Bank will use its best efforts to comply at all times with the applicable requirements set out under Law 10/2014 in order to benefit from the tax treatment described in the First Additional Provision of Law 10/2014.
(p) From the date hereof and continuing to and including the Closing Date, the Bank will not, without the Representatives’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of on international capital markets any material amount of Euro-denominated contingent convertible perpetual securities issued or guaranteed by the Bank and which are substantially similar to the Securities, except for the Bank’s customary deposit-raising activities.
(by operation q) The Bank shall not, during the period commencing on the date of law or otherwise) this Agreement and ending on the Closing Date, take any Collateral except as otherwise permitted action which, had the Securities then been in issue, would result in an adjustment to the Floor Price in accordance with the Credit AgreementProspectus.
(r) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank by a signatory authorized by the Executive Committee of the Bank and agrees that the Securities will be executed and delivered in the name of the Bank, manually or via facsimile, by a signatory authorized by the Executive Committee of the Bank.
Appears in 1 contract
Covenants and Agreements. Section 4.1 It is understood and agreed that the obligations of Cavalier under the Repurchase Agreement relate solely to the Dealer to whom the Cavalier Product was originally invoiced and shall cease and be of no further force and effect with respect to such Cavalier Product upon any sale or other conveyance of the Cavalier Product, whether in the ordinary course of business or in connection with any sale of all or substantially all of the assets of such Dealer, the sole exception being the acquisition of such collateral by Green Tree pursuant to foreclosure or other acquisition in satisfaction of debts previously contracted.
Section 4.2 Green Tree and Cavalier agree to work and negotiate in good faith for the development of a program for refurbishing by CMI of repossessed manufactured homes held by Green Tree. This program shall only apply to those repossessed homes in which Green Tree has completed its foreclosure of the Borrower's rights.
Section 4.3 Green Tree agrees to work and negotiate in good faith with CAC to develop products and programs pursuant to which CAC will promote, and Green Tree will purchase, otherwise Non-Conforming Manufactured Housing Retail Finance Contracts which in the good faith judgment of CAC meet, or likely meet, the criteria mutually agreed to by Green Tree and CAC ("Special Contracts"). Programs to be considered shall include, but not be limited to, manufacturer rebate transactions and first time home buyer programs.
Section 4.4 Green Tree agrees to work and negotiate in good faith with Cavalier to develop a private label, customized financing proposal which will be made available only to Exclusive Dealers and Preferred Dealers which meet Green Tree's standards of creditworthiness and upon terms satisfactory to Green Tree in its sole discretion regarding the matters set forth on Exhibit X (item 18). The terms of such financing must be satisfactory to Green Tree in its sole discretion.
Section 4.5 The parties hereto covenant and agree not to disclose any proprietary and/or confidential information contained in Exhibit X to any person except (i) on an internal need to know basis where such person is bound by this provision (including appropriate internal safeguards) or other appropriate confidentiality agreements or ethical obligations, it being understood that such disclosure may be made to certain relevant professionals, persons purchasing or considering purchase of loan participations related to Transferred CAC Loans, Green Tree Floor Plan Loans, or securities backed by such loans, or to rating agencies or as otherwise required in connection with securitization transactions or similar funding transactions, or (ii) as required by law or pursuant to court order. Each Grantor party agrees to give the other prompt written notice in the event that it is presented with a legal requirement to disclose Exhibit X; provided that such notification is not prohibited by law.
Section 4.6 Green Tree hereby covenants represents and agrees thatwarrants to Cavalier, as of the date hereof, and as of all times up to and through the termination of this Agreement, as follows:
(ia) except for Green Tree has been duly organized and is validly existing and in good standing under the security interest created laws of the jurisdiction of its organization with the power and authority to own its properties and engage in the transactions contemplated by this Agreement;
(b) The execution, it delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by each of them and, at the time of execution, performance or consummation, shall not create constitute or suffer to exist result in any Lien upon breach or with respect to violation of any of the Collateralterms or provisions or conditions of or constitute default under, except Permitted Liensany statute, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statutelaw, regulation or ordinance of the United States, any state or political subdivision thereof or any policy material contract, agreement, indenture or trust to which such person is a party or by which it is bound or any order, arbitration award, judgment, decree or ruling of insurance covering the Collateral if any court or governmental agency or body having jurisdiction over such violation could reasonably be expected to have a Material Adverse Effectparty;
(iiic) it shall There is not change such Grantor’s namepending or, identityto the knowledge of Green Tree, corporate structure (e.g.threatened, any action, suit or proceeding before or by mergerany court, consolidationgovernmental agency, arbitral authority, body or administrator to which Green Tree is a party, or by which any of its property is subject, which might result in a material adverse change in corporate form the condition, financial or otherwise), sole place or business prospects of businessGreen Tree;
(d) This Agreement and each of the agreements referenced by exhibit herein, chief executive officeconstitutes the legal, type valid and binding agreement of organization or jurisdiction Green Tree enforceable in accordance with its terms;
(e) The Credit Scoring performed shall comply in all material respects with applicable federal, state and local law and regulation.
Section 4.7 Cavalier hereby represents and warrants to Green Tree, as of organization or establish any trade names unless it shall have the date hereof, and as of all times up to and through the termination of this Agreement, as follows:
(a) notified Cavalier has been duly organized and is validly existing and in good standing under the Collateral Agent in writing, by executing laws of the jurisdiction of its organization with the power and delivering authority to the Collateral Agent a completed Pledge Supplement, substantially own its properties and engage in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and transactions contemplated by this Agreement;
(b) taken all actions necessary or advisable to maintain the continuous validityThe execution, perfection delivery and performance of this Agreement, and the same or better priority consummation of the Collateral Agent’s security interest transactions contemplated hereby, have been duly authorized by each of them and, at the time of execution, performance or consummation, shall not constitute or result in any breach or violation of any of the Collateral intended terms or provisions or conditions of or constitute default under, any statute, law, regulation or ordinance of the United States, any state or political subdivision thereof or any material contract, agreement, indenture or trust to be granted and agreed to herebywhich such person is a party or by which it is bound or any order, arbitration award, judgment, decree or ruling of any court or governmental agency or body having jurisdiction over such party;
(ivc) if There is not pending or, to the Collateral Agent knowledge of Cavalier, threatened, any action, suit or proceeding before or by any other Secured Party gives value court, governmental agency, arbitral authority, body or administrator to enable Grantor to acquire rights which Cavalier is a party, or by which any of its property is subject, which might result in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid material adverse change in the chronological order such Grantor acquired rights thereincondition, financial or otherwise, or business prospects of Cavalier;
(vd) it shall pay promptly when due all property This Agreement and other taxeseach of the agreements referenced by exhibit herein, assessments constitutes the legal, valid and governmental charges or levies imposed upon, binding agreement of Cavalier enforceable in accordance with its terms.
Section 4.8 Green Tree agrees to indemnify and hold harmless Cavalier from and against any and all claims losses, claims, damages, liabilities, costs and expenses (including claims for laborreasonable attorneys' and experts' fee and expenses) to which CAC or any of its employees, materials directors, officers, accountants and supplies) against, the Collateral, except to the extent the validity thereof is being contested affiliates may become subject arising from any act or omission of Green Tree in good faith connection with its servicing of Transferred CAC Loans from and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to after the date of the transfer of such CAC Loan.
Section 4.9 Green Tree agrees to offer the Preferred Floor Plan Financing to all of the Exclusive Dealers and Preferred Dealers, whether now or hereafter identified by CMI, provided that such Exclusive Dealer or Preferred Dealer, as the case may be, meets the creditworthiness standards established by Green Tree in its sole discretion.
Section 4.10 CAC agrees that it will not refinance any proposed sale Borrower under any judgmentCAC Loan transferred to Green Tree hereunder (a "Transferred CAC Loan"); provided that the foregoing restrictions shall not be deemed to apply with respect to the origination or purchase of a Consumer Loan by CAC from a Borrower under a Transferred CAC Loan if the new Consumer Loan is secured by different collateral (i.e., writ or warrant CAC may freely finance Borrowers trading in homes for new Cavalier Product) ("Trade-in Loans"). Except with respect to Trade-in Loans, CAC agrees that, notwithstanding anything else to the contrary contained herein, the Acquisition Premium on any Available CAC Loan which results from the refinancing of attachment entered or filed against such Grantor or any Green Tree Loan shall be a zero percent (0%) of the Collateral as a result outstanding principal balance of the failure new CAC Loan related thereto.
Section 4.11 Green Tree and Cavalier agree to make provide the other with such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify reports and information most conveniently at the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value disposal of the Collateral or any material portion thereofother, on a timely basis, as each shall reasonably request regarding Transferred CAC Loans, including the amount and aging of Pre-Sold Financing, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitationPass Rate, the levy number and amount of any legal process against Green Tree Loans acquired from Exclusive Dealers and Preferred Dealers and the Collateral or any portion thereof;
(vii) it performance of Transferred CAC Loans, and the average outstanding daily balance of Green Tree Floor Plan Loans to each of Exclusive Dealers and Preferred Dealers. Each party shall not take or permit any action which would reasonably be expected obtain the consent from all necessary parties in order to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementprovide such information.
Appears in 1 contract
Covenants and Agreements. Each The Grantor hereby covenants and agrees that:
(iA) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any Investment Related Property constituting Collateral with a fair market value in excess of $[***]that is represented by a certificate or that is an Instrument (other than any Investment Related Property credited to a Securities Account) owned by the Grantor, it shall cause such certificate or instrument to be delivered to the Collateral Agent, indorsed in blank by an “effective indorsement” (as defined in Section 8-107 of the CollateralUCC), except Permitted Liensregardless of whether such certificate constitutes a “certificated security” for purposes of the UCC (a “Certificated Security”); and
(B) with respect to any Investment Related Property constituting Collateral with a fair market value in excess of $[***] that is an “uncertificated security” for purposes of the UCC (other than any uncertificated securities credited to a Securities Account) (an “Uncertificated Security”) owned by the Grantor, and it shall cause the Issuer of such Grantor shall defend Uncertificated Security to either (i) register the Collateral against all Persons at any time claiming any interest therein;
Agent as the registered owner thereof on the books and records of the Issuer or (ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, execute an agreement substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change B or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as form reasonably satisfactory to the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable Agent, pursuant to maintain the continuous validity, perfection and the same or better priority of which such Issuer agrees to comply with the Collateral Agent’s security interest in instructions with respect to such Uncertificated Security without further consent by the Collateral intended to be granted and agreed to hereby;Grantor; and
(ivC) if in addition to the foregoing, upon the occurrence and during the continuation of an Event of Default, the Collateral Agent shall have the right, without notice to the Grantor, to (i) transfer all or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used Investment Related Property to acquire rights in its name or the name of its nominee or agent and (ii) subject to the terms of the applicable Investment Related Property, to exchange any certificates or instruments representing such Investment Related Property constituting Collateral shall be paid in for certificates or instruments of smaller or larger denominations. In the chronological order such Grantor acquired rights therein;
event of a transfer pursuant to clause (vi) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) againstof the immediately preceding sentence, the Collateral, except to Collateral Agent shall within a reasonable period of time thereafter give the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit AgreementGrantor written notice of such transfer; provided, such Grantor shall in any event pay such taxeshowever, assessments, charges, levies or claims not later than five that (5x) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make give such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it notice shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect no effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against hereunder and (y) the Collateral or any portion thereof;
(vii) it Agent shall not take be required to deliver any such notice if the Grantor is the subject of a Bankruptcy Event or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (delivery of such notice is otherwise prohibited by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementapplicable law.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby 4.1 National covenants and agrees that:
(iA) except for National shall take all actions required to be taken by it under state `blue sky', securities or takeover laws and by the security interest created SEC, the OTC Bulletin Board and any other regulatory body in connection with the Acquisition, if any.
(B) National shall take all actions necessary in accordance with Delaware law, its certificate of incorporation, and its by-laws to secure stockholder approval of the Acquisition, if required.
(C) Tele and the Sellers shall be entitled to designate three (3) members out of a total of five (5) Board members to the Board of Directors of National effective upon the Acquisition Closing (each a "Proposed Board Member" and collectively, the "Proposed Board Members"), provided that the Proposed Board Members submit written director questionnaires in the forms to be provided by this AgreementNational and such persons are mutually acceptable to National.
(D) All of the Acquisition Shares shall be duly authorized and validly issued and will be fully paid and nonassessable and not subject to preemptive rights and will be issued in compliance with applicable securities laws and regulations.
(E) National shall have divested itself of all assets and liabilities, it contractual or otherwise, including but not limited to all tax liabilities relating to periods prior to the Acquisition Closing, provided however, that if such divestiture is not completed as of the Acquisition Closing, such failure shall not create prevent the Acquisition Closing from occurring provided that National has provided at the Acquisition Closing an adequate reserve in cash in its account to cover all such liabilities contractual or suffer to exist otherwise. National shall in any Lien upon or with respect event have resolved all liabilities owed to any of existing National officers and directors on or before the CollateralAcquisition Closing. Following the date hereof and through the Acquisition Closing, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it National shall not produce, use or permit engage in any Collateral to actions that may be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;material adverse effect on its business or financial condition, provided that National may continue to engage in the raising of capital for purposes of funding its obligation to loan or make an equity investment in Tele in accordance with Section 5.2(B) below.
4.2 Tele and the Principal Seller covenant and agree that:
(iiiA) it Tele shall take all actions necessary in accordance with New York law, its certificate of incorporation, and its by-laws to secure stockholder approval of the Acquisition. Tele shall take all actions as the sole member of Genio, TVLLC and TV Media in accordance with Delaware law to secure the approval of Genio, TVLLC and TV Media to the transactions contemplated hereby.
(B) Sellers hereby waive all rights of first offer, rights of first refusal, co-sale rights or similar rights held by them, if any and all notices thereof, with respect to the transactions contemplated hereby
(C) From and after the date of this Agreement, each of Tele, Genio, TVLLC and TV Media shall conduct their respective businesses in the ordinary course and consistent in all material respects with past practice.
(D) From and after the date of this Agreement through the Acquisition Closing, Tele shall not change such Grantor’s nameamend its charter or bylaws and Genio, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type TVLLC and TV Media shall not amend their articles of organization and neither Tele, Genio, TVLLC nor TV Media shall (i) declare, set aside or jurisdiction pay any dividend or other distribution or payment in cash, stock or property in respect of organization shares of capital stock or establish membership interests, respectively (ii) make any trade names unless it direct or indirect redemption, retirement, purchase or other acquisition of any capital stock or membership interests, respectively (iv) split, combine or reclassify outstanding shares of capital stock or membership interests, respectively (v) issue or agree to issue any shares, or rights, substitutions, warrants, calls options or other agreements or arrangements of any kind to acquire or otherwise receive any shares of capital stock or any membership interests, respectively, without the express written consent of National which consent may be withheld in its sole discretion.
(E) From and after the date of this Agreement through the Acquisition Closing, Tele shall have use its commercially reasonable efforts to (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to obtain promptly any such change consents or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information approvals required in connection therewith as with the Collateral Agent may reasonably request Acquisition including any licensor, if necessary, and (b) taken all actions necessary secure written two (2) year employment agreements with Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxx Xxx-Xxxxx and Xxxx Xxx-Xxxx and either Tele, Genio, TVLLC, TV Media or advisable any combination thereof which shall provide that upon the Acquisition Closing, the compensation provided under such employment agreements shall be amended to maintain the continuous validity, perfection include certain stock and the same or better priority of the Collateral Agent’s security interest option grants from National in the Collateral intended amounts and subject to certain vesting requirements to be granted agreed upon by National on or before the Acquisition Closing. Tele, Genio, TVLLC and agreed TV Media, their officers, directors or agents shall not (i) increase the compensation payable or to hereby;
become payable to any officer, director, employee or consultant except in accordance with employment or consulting agreements referred to Section 1.2; (ii) adopt or enter into, or amend, except as required by applicable law, any stock option, bonus, profit sharing, pension, retirement, deferred compensation, employment or other payment or employee compensation plan, agreement or arrangement, (iii) grant any stock options or stock appreciation rights, (iv) if the Collateral Agent or amend any other Secured Party gives value to enable Grantor to acquire rights employment agreement disclosed in or the use of any CollateralExhibit 3.8, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property make any loan or advance to, or enter into any contract lease or commitment with any officer or director of Tele or any member of Genio, TVLLC or TV Media, (vi) assume, guarantee, endorse or otherwise become responsible for any material obligations of any other individual, firm or corporation or make any loans or advances to any individual, firm or corporation, (vii) except for investments in equipment and other taxesassets in the ordinary course of business consistent with existing capital expenditure budgets, assessments and governmental charges make any material investment of a capital nature either by purchase of stock or levies imposed uponsecurities, and all claims (including claims for laborcontributions to capital, materials and supplies) againstproperty transfers or otherwise, or by the Collateralpurchase of any property or assets of any other individual, firm or corporation, except to the extent IMA Acquisitions, (viii) incur any indebtedness for borrowed money excluding the validity thereof is being contested Bridge Note (ix) purchase or acquire any material interest in good faith and as otherwise provided any business or any securities or assets of a business which in the Credit Agreement; providedaggregate exceed $25,000 other than in the ordinary course of business, such Grantor shall (x) enter into any joint venture or partnership, (xi) settle any material litigation, (xii) voluntarily accelerate payments on any indebtedness, (xiii) enter into, modify or amend in any event pay such taxesmaterial respect or take any action to terminate any of the Contracts, assessments(xiv) waive, chargesrelease, levies grant or claims not later transfer any rights of material value, except in the ordinary course of business and consistent with past practice (xv) transfer, lease, license, sell, mortgage, pledge dispose of or encumber any material assets other than five in the ordinary course of business and consistent with past practice, (5xvi) days prior communicate, solicit, initiate, encourage or participate in any discussions or negotiations with regard to the date of any proposed sale under proposal to acquire, directly or indirectly, any judgment, writ or warrant of attachment entered or filed against such Grantor Tele Common Stock or any of the Collateral as Membership Interests or to invest any funds in Tele, Genio, TVLLC or TV Media, whether such proposal, acquisition, investment or other transaction involves a result stock sale, a tender offer, exchange offer, merger or other business combination involving Tele, Genio, TVLLC or TV Media, or for the acquisition of a substantial portion of the failure assets of Tele, Genio, TVLLC or TV Media. Tele, Genio, TVLLC or TV Media` shall immediately communicate to make such payment;National the identity of the other party and the initial terms of any proposal it or any of the Sellers may received from any other party in respect of any of the above-referenced proposals (each an "Acquisition Proposal"). The Board of Directors of Tele and the managing member of Genio, TVLLC and TV Media and the Sellers shall not (i) withdraw or modify or propose to withdraw or modify, their approval of this Agreement, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Acquisition Proposal or (iii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (xvii) enter into an agreement to do any of the foregoing.
(viF) upon such Grantor or any Senior Officer Provide National with all relevant financial information to enable National to verify whether the financial conditions to the Acquisition Closing set forth in Article V are satisfied, including a true and complete balance sheet of such Grantor obtaining actual knowledge thereofeach of Tele, it shall promptly notify Genio, TVLLC and TV Media in the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value form annexed hereto as Exhibit 4.2(G).
(G) Provide National with true and complete copies of the Collateral or any material portion thereof, Employment Agreements and the ability of any Grantor or Xxxx Xxx-Xxxx Employment Agreement.
(H) Provide National with a schedule setting forth the Collateral Agent to dispose allocation of the Collateral or any material portion thereof, or Acquisition Shares to the rights Sellers and remedies the Employee Shares to certain key employees of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementTV.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Management Consultants Inc)
Covenants and Agreements. Each Grantor hereby covenants The Company and agrees the Bank agree with each Underwriter that:
(ia) except for The Company and the security interest created by this AgreementBank shall prepare and furnish to each Underwriter, it shall not create or suffer to exist any Lien upon or with respect to any without charge, a conformed copy of the CollateralRegistration Statement (including exhibits thereto and documents incorporated by reference therein) in a form approved by the Underwriters, and will promptly furnish the Underwriters during the period mentioned in Section 4(d) or 4(e) below with copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, in such quantities as the Underwriters may from time to time reasonably request, and will not publish any amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus unless they have furnished a copy to the Underwriters for review and, except Permitted Liensas required by law, and will not publish any such Grantor shall defend proposed amendment or supplement to which the Collateral against all Persons Underwriters reasonably object. If at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority completion of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion distribution of the value used to acquire rights in any Collateral shall be paid in Notes (as determined by the chronological order such Grantor acquired rights therein;
(vUnderwriters) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral occurs as a result of which the failure Registration Statement, the Time of Sale Prospectus or the Prospectus as then amended or supplemented would contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company or the Bank will promptly so notify the Underwriters and will prepare and furnish to the Underwriters, subject to prior review as provided above, a reasonable number of copies of an amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the Prospectus which will correct such payment;statement or omission.
(vib) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value Each of the Collateral Company and the Bank shall furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or any material portion thereofon behalf of, used by, or referred to by the ability of any Grantor Company or the Collateral Agent Bank and not to dispose use or refer to any proposed free writing prospectus to which you reasonably object.
(c) Except as otherwise contemplated pursuant to this Agreement, each of the Collateral or any material portion thereof, or Company and the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it Bank shall not take or permit any action that would result in an Underwriter, the Company or the Bank being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which would reasonably be expected it is necessary to materially impair amend or supplement the Collateral Agent’s rights Time of Sale Prospectus in order to make the statements therein, in the Collateral; andlight of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(viiie) If, during such period after the first date of the public offering of the Notes as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company or the Bank) to which Notes may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(f) Each of the Company and the Bank shall endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request.
(g) Each of the Company and the Bank shall make generally available to the Bank’s security holders and to the Underwriters as soon as practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(h) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Notes have been sold by the Underwriters, prior to the third anniversary each of the Company and the Bank shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Notes to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(i) Each of the Company and the Bank shall prepare a final term sheet relating to the offering of the Notes, containing only information that describes the final terms of the Notes or the offering in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Notes.
(j) The Bank will use its reasonable efforts, and shall cause the Company to use its reasonable efforts, to effect, on or as soon as practicable after the Closing Date, and in no event more than 45 days following the Closing Date, the authorization of the Notes for listing on the New York Stock Exchange, Inc. (the “NYSE”), subject only to official notice of issuance. For so long as any of the Notes are outstanding, each of the Bank and the Company will use its commercially reasonable efforts to maintain the listing of the Notes, and will prepare, submit, furnish and publish (as appropriate) all such documents, instruments, information, advertisements and undertakings as may be necessary or advisable for such purposes.
(k) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the Notes qualify as debt instruments (instrumentos de deuda) under Law 10/2014.
(l) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to ensure that the public deed in respect of the Notes and disbursement minutes in respect of the Notes, if required, are registered in the Mercantile Registry of Madrid within one month of the Closing Date.
(m) The Bank will use its best efforts, and shall cause the Company to use its best efforts, to permit the Notes to be eligible for clearance and settlement through the Depositary.
(n) From the date hereof and continuing to and including the Closing Date, the Bank will not, and shall ensure that the Company does not, without the Underwriters’ prior written consent (which consent shall not be unreasonably withheld), offer, sell, transfer contract to sell or assign otherwise dispose of in the United States any material amount of dollar-denominated debt securities issued or guaranteed by the Bank which both mature more than one year after such Closing Date and which are substantially similar to the Notes and the Guarantees, except for the Bank’s customary deposit-raising activities.
(o) The Bank agrees that for as long as the Notes are outstanding it will maintain 100% ownership of the share capital of the Company, directly or indirectly.
(p) The Company confirms that this Agreement has been executed and delivered in the name of the Company by operation a signatory authorized by the Board of Directors of the Company and agrees that the Notes will be executed and delivered in the name of the Company, manually or via facsimile by a signatory authorized by the Board of Directors of the Company.
(q) The Bank confirms that this Agreement has been executed and delivered in the name of the Bank and agrees that the Guarantees will be executed and delivered in the name of the Bank, manually or via facsimile by a signatory authorized by the Board of Directors or the Executive Committee of the Bank.
(r) If the Company or the Bank maintains a paying agent in respect of the Notes or the related Guarantees in a European Union member state, it will ensure that it maintains a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC or any directive amending, supplementing or replacing such directive (each, a “Directive”) or any law implementing or otherwisecomplying with, or introduced in order to conform to, such Directive or Directives.
(s) any Collateral except The Company will, so long as otherwise permitted in accordance the Notes are outstanding, permanently deposit the proceeds of the issuance of the Notes, net of management and issuance costs, with the Credit AgreementBank or a company of its consolidated group, which may use the proceeds for the general corporate purposes of the group.
Appears in 1 contract
Samples: Underwriting Agreement (Santander US Debt, S.A. Unipersonal)
Covenants and Agreements. Each Grantor hereby covenants and 10.1 [Intentionally Left Blank]
10.2 Seller agrees that:
(i) except for the security interest created by this Agreementthat it will, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any and from time to time, after the Closing, upon request of Buyer, do, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to convey and transfer to and vest in Buyer and protect its rights, title and interest therein;in and enjoyment of all the Assets.
(ii) it 10.3 The parties hereto shall not produceuse their reasonable best efforts to obtain, use or permit any Collateral and to be used unlawfully or cooperate with each other in violation of any provision obtaining, all authorizations, approvals, licenses, permits and other consents contemplated by Articles VIII and IX.
10.4 During the period from the date of this Agreement or any applicable statutethrough the Closing Date, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority Seller will conduct its operation of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted Business only in accordance with the Credit Management Agreement and Seller shall not dispose of any of the assets of the Business, except as contemplated by the Management Agreement.
10.5 Seller shall afford to Buyer, its attorneys, accountants and such other representatives of Buyer as Buyer shall designate to Seller, free and full access at all reasonable times, and upon reasonable prior notice, to the Assets and the properties, books and records of Seller, and to interview personnel, suppliers and customers of Seller, in order that Buyer may have full opportunity to make such investigation as it shall reasonably desire of the Assets, the Liabilities and the Business. Seller shall allow an environmental consulting firm selected by Buyer (the "ENVIRONMENTAL AUDITOR") to have prompt access to the Real Property in order to conduct an environmental investigation, satisfactory to Buyer in scope (such scope being sufficient to result in a Phase I environmental audit report and a Phase II environmental audit report, if desired by Buyer), of, and to prepare a report with respect to, the Real Property (the "ENVIRONMENTAL AUDIT"). Seller shall provide to the Environmental Auditor: (i) reasonable access to all of its existing records concerning the matters which are the subject of the Environmental Audit; and (ii) reasonable access to the employees of Seller and the last known addresses of former employees of Seller who are most familiar with the matters which are the subject of the Environmental Audit (Seller agreeing to use reasonable efforts to have such former employees respond to any reasonable requests or inquiries by the Environmental Auditor). Seller shall otherwise cooperate with the Environmental Auditor in connection with the Environmental Audit. Buyer shall bear 100% of the costs, fees and expenses in connection with the Environmental Audit.
10.6 All representations and warranties of Seller and the Stockholder shall survive the Closing Date. Seller and the Stockholder, jointly and severally, agree to indemnify and hold harmless Buyer and its stockholders, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them or asserted against any of them or the Assets, arising out of or based upon (a) the failure of any representation or warranty of Seller or the Stockholder contained herein, or in any agreement, certificate or document executed by Seller or the Stockholder in connection herewith, to be true and correct in all material respects as of the Inventory Date, (b) the breach of any covenant or agreement of Seller or the Stockholder contained in this Agreement, (c) any liability or obligation of Seller or the Stockholder not expressly assumed by Buyer pursuant to this Agreement, or (d) any arrangements or agreements made or alleged to have been made by Seller or the Stockholder with any broker, finder or other agent in connection with the transactions contemplated hereby. Notwithstanding the foregoing, the total indemnification obligations of the Seller and the Stockholder hereunder shall not exceed the Purchase Price.
10.7 All representations and warranties of Buyer shall survive the Closing Date. Buyer agrees to indemnify and hold harmless Seller and its stockholder, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them, or asserted against any of them, arising out of or based upon (a) the failure of any representation or warranty of Buyer contained herein, or in any agreement, certificate or document executed by Buyer in connection herewith, to be true and correct in all material respects as of the Closing Date, (b) the breach of any covenant or agreement of Buyer contained in this Agreement, or (c) the Liabilities.
10.8 Personal property, use and intangible taxes and assessments with respect to the Assets shall be prorated on a per diem basis and apportioned between Seller and Buyer as of the date of the Closing. Seller shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, periods on or prior to the Inventory Date, and Buyer shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, any period after the Inventory Date. Any taxes attributable to the sale or transfer of the Assets to Buyer hereunder shall be paid by Seller.
10.9 Except as may be required by law or the rules of the New York Stock Exchange or as necessary in connection with the transactions contemplated hereby, no party hereto shall (i) make any press release or other public announcement relating to this Agreement or the transactions contemplated hereby, without the prior approval of the other parties hereto or (ii) otherwise disclose the existence and nature of negotiations regarding the transactions contemplated hereby to any person or entity other than such party's accountants, attorneys, agents and representatives, all of whom shall be subject to this nondisclosure obligation as agents of such party. The parties shall cooperate with each other in the preparation and dissemination of any public announcements of the transactions contemplated by this Agreement.
10.10 Neither Seller nor the Stockholder shall pursue, initiate, encourage or engage in, any negotiations or discussions with, or provide any information to, any person or entity (other than Buyer and its representatives and affiliates) regarding the sale or possible sale to any such person or entity of any of the Assets or capital stock of Seller or any merger or consolidation or similar transaction involving Seller.
10.11 Buyer shall promptly apply for, or cause an affiliate of Buyer to apply for, the issuance of franchises to operate a Lincoln-Mercury-Jaguar dealership upon the Real Property. Effective as of the Closing, Seller shall terminate its Dealer Sales and Service Agreements with the Manufacturers. Seller shall fully cooperate with Buyer, and take all reasonable steps to assist Buyer, in Buyer's efforts to obtain its own similar Dealer Sales and Service Agreements with the Manufacturers. The parties acknowledge that Buyer's Dealer Agreements are subject to the approval of the Manufacturers and that Buyer would be unable to obtain its own, similar Dealer Sales and Service Agreement absent Seller's termination of its agreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor In order to induce Agent and Lenders to forbear from the exercise of their respective rights and remedies as set forth above, Borrower hereby covenants and agrees thatas follows:
(i) except for the security 5.1 Borrower will further refrain from paying its July 15, 2002 regularly scheduled interest created by this Agreementpayment, it shall not create or suffer to exist any Lien upon or other payment then due with respect to any the Subordinated Debt (other than payments to or on behalf of professionals and advisors retained by or on behalf of some or all of the Collateralholders of the Subordinated Debt).
5.2 On or before October 4, except Permitted Liens2002, Borrower shall have an agreement in principle to engage the services of a "crisis manager" reasonably acceptable to the Lenders' Steering Committee (the "Steering Committee"), and Borrower shall execute a definitive agreement with such Grantor "crisis manager" on or before October 8, 2002.
5.3 In addition to financial reports and other certificates and instruments Borrower is required to deliver to Agent pursuant to Sections 5.1 and 5.2 of the Credit Agreement, Borrower shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not producedeliver to Agent, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writingon a weekly basis by not later than Friday of each week, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached heretorolling 13-week cash flow projection, together with all Supplements a comparison of actual payments to Schedules theretobudgeted line items for the prior weekly period, at least fifteen in form and substance satisfactory to Agent, and (15b) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith reports, analyses, financial statements and projections as the Collateral Agent may reasonably request from time to time.
5.4 Borrower shall deliver to Agent and the Steering Committee on or before October 18, 2002, (a) a revised budget (the "DIP Budget") with respect to the proposed debtor-in-possession credit facility, and (b) taken all actions necessary a revised rolling 6-week and 13-week cash flow projection reflecting any changes required by any DIP Budget.
5.5 Borrower will not modify or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or otherwise change any other Secured Party gives value to enable Grantor to acquire rights in or the use provisions of any CollateralMaterial Contract (exclusive of collective bargaining agreements) during the term of this Agreement, it shall use such value for such purposes and such Grantor further agrees that repayment of specifically including any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges contracts or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor agreements between Borrower or any of its Subsidiaries, on the Collateral as a result one hand, and, on the other hand, any members of the failure to make such payment;
(vi) upon such Grantor Borrower or any Senior Officer of such Grantor obtaining actual knowledge thereoftheir subsidiaries and any members or shareholders of GHC Sub, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereofGlass Holdings, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereofJefferson, or the rights Xxxxx Corning, or Xxxxx Corning in its individual corporate capacity.
5.6 Borrower shall, at Borrower's expense, and remedies of the Collateral shall cause Guarantors to, cooperate fully, and cause their respective officers, employees, accountants, consultants and other agents to cooperate fully, in furnishing information as and when reasonably requested by Agent in relation thereto, includingregarding, without limitation, the levy business plan delivered to Agent on June 11, 2002, other financial reports, business plans and projections delivered to Agent from time to time, the Collateral, and Borrower's or any Guarantor's affairs, finances, financial condition and business operations. Borrower and each Guarantor authorize Agent to meet and/or have discussions with any of Borrower's or such Guarantor's officers, key employees, accountants, consultants, financial advisors, and other agents from time to time to discuss any legal process against reasonable matters regarding business plans, financial reports, projections, and the Collateral and Borrower's or any portion thereof;such Guarantor's affairs, finances, financial condition and business operations, and shall direct and authorize all such persons and entities to fully disclose to Agent all information reasonably requested by Agent subject to all applicable attorney-client or accountant-client privileges. Borrower shall promptly, when and as requested by Agent, provide Agent with access to Borrower's original books and records and permit Agent to make copies thereof subject to all applicable attorney-client or accountant-client privileges.
(vii) it 5.7 Borrower shall, throughout the term of this Agreement, continue to make a full and complete disclosure of all material aspects of its financial condition and business operations on behalf of itself and each Guarantor.
5.8 Borrower shall not take or permit any action which would reasonably be expected continue to materially impair the Collateral Agent’s rights perform and observe all terms and conditions contained in the Collateral; andLoan Documents that are not specifically mentioned in this Agreement as a Covenant Default or a default relating to the Sub Debt Payment.
(viii) it shall 5.9 This Agreement is intended to be a further accommodation by Agent and Lenders to Borrower. In consideration of all such accommodations, and acknowledging that Agent and Lenders will be specifically relying on the following provisions as a material inducement in entering into this Agreement, Borrower agrees that in connection with such release and discharge, Borrower specifically and expressly waives all claims which Borrower does not sell, transfer know or assign (by operation suspect to exist in its favor at the time of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit executing this Agreement.
Appears in 1 contract
Samples: Credit Agreement and Forbearance Agreement (Advanced Glassfiber Yarns LLC)
Covenants and Agreements. Each Grantor hereby I. The Issuer Trustee covenants and agrees thatwith each of the several Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class A-1 Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) except for the security interest Issuer Trustee shall execute those of the Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure that the charges created by this Agreementor contained in the Security Trust Deed are registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it shall knows or has reason to believe would result in the Class A-1 Notes not create being assigned the ratings referred to in Section 6(q) below;
(h) not, prior to or suffer to exist on the Closing Date, amend the terms of any Lien upon or with respect to Basic Document nor execute any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially Basic Documents other than in the agreed form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as without the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority consent of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to herebyUnderwriters;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Securitisation Advisory Services Pty LTD)
Covenants and Agreements. Each Grantor hereby I. The Issuer Trustee covenants and agrees thatwith each of the several Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class [ ] Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class [ ] Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall execute those of the Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class [ ] Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure that the charges created by or contained in the Security Trust Deed are registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it knows or has reason to believe would result in the Class [ ] Notes not being assigned the ratings referred to in Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic Document nor execute any of the Basic Documents other than in the agreed form without the consent of the Underwriters;
(i) provided the Manager complies with Section 5.II.(r), the Issuer Trustee will:
(i) except for sign and deliver to the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any UK Listing Authority a listing application and copies of the Collateral, except Permitted Liens, and such Grantor shall defend Prospectus on or prior to the Collateral against all Persons at any time claiming any interest thereinClosing Date;
(ii) it ensure that the Prospectus shall not produce, use be approved as listing particulars by or permit any Collateral to be used unlawfully or in violation on behalf of any provision the UK Listing Authority as required by Section [144(2)] of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;Financial Services Act and the Listing Rules; and
(iii) it ensure that two copies of the Prospectus shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering be delivered to the Collateral Agent a completed Pledge Supplement, substantially Registrar of Companies in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name England and providing such other information in connection therewith Wales for registration as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority required by Section [149] of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent Financial Services Act, on or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to before the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion publication thereof;
(viij) it shall not take to procure that if, after the Prospectus has been published and following the admission of the Class [ ] Notes to the Official List of the UK Listing Authority and admission of the Class [ ] Notes to trading on the London Stock Exchange:
(i) there is a significant change affecting any matter contained in the Prospectus the inclusion of which was required by Section [146] of the Financial Services Act or permit any action by the Listing Rules or by the UK Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information in respect of which would have been so required if it had arisen when the Prospectus was prepared, to notify the Representative on behalf of the Underwriters as soon as reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; practicable and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreement.Listing Rules, to submit to the UK Listing Authority for its approval and, if approved, publish a supplement to the Offering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act, it will, before it issues any Class [ ] Note, seek a listing of the Class [ ] Notes on the Official List of the UK Listing Authority and the admission of the Class [ ] Notes to trading on the London Stock Exchange, and use its best efforts to maintain such listing for as long as any of the Class [ ] Notes are outstanding; provided, however, if such listing becomes impossible, to use their best efforts to obtain, and will thereafter use its best efforts to maintain a quotation for, or listing of, the Class [ ] Notes on such other exchange as is commonly used for the quotation or listing of debt securities as they may, with the approval of [ ], decide; and
Appears in 1 contract
Samples: Underwriting Agreement (Securitisation Advisory Services Pty LTD)
Covenants and Agreements. a. Each Grantor hereby covenants and Securityholder agrees that:
, commencing at the Effective Time and continuing for 180 days following the Effective Date, it, he or she shall not Transfer (i) except for any Spinco Common Shares it, he or she is issued as consideration in the security interest created by this Plan of Arrangement and pursuant to Section 1.13 of the Business Combination Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produceany Converted Option or Converted Warrant that it, use he or permit any Collateral she is issued as consideration in the Plan of Arrangement and pursuant to be used unlawfully Section 1.13 of the Business Combination Agreement, or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change any Spinco Common Shares it, he or she is issued upon exercise or conversion of a Converted Option or Converted Warrant that it, he or she is issued as consideration in the Plan of Arrangement (collectively, and excluding any portion of such Grantor’s namesecurities that has been released pursuant to the release schedule set forth below, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwisethe “Lockup Securities”), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering subject to the Collateral Agent a completed Pledge Supplement, substantially in following release schedule:
i. 20% of each of (i) the form Spinco Common Shares; (ii) the Converted Warrants (including Spinco Common Shares issued on exercise of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request Converted Warrants); and (biii) taken all actions necessary or advisable to maintain the continuous validity, perfection Converted Options (including the Spinco Common Shares issued on exercise of such Converted Options) that collectively make up the Lockup Securities may be Transferred at and following the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to herebyEffective Time;
ii. 40% of each of (ivi) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or Spinco Common Shares; (ii) the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims Converted Warrants (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer Spinco Common Shares issued on exercise of such Grantor obtaining actual knowledge thereof, it shall promptly notify Converted Warrants); and (iii) the Collateral Agent in writing Converted Options (including the Spinco Common Shares issued on exercise of any event such Converted Options) that would reasonably collectively make up the Lockup Securities may be expected to have a Material Adverse Effect on Transferred at and following the value of 90th day following the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the CollateralEffective Date; and
iii. 40% of each of (viiii) it shall not sellthe Spinco Common Shares; (ii) the Converted Warrants (including Spinco Common Shares issued on exercise of such Converted Warrants); and (iii) the Converted Options (including the Spinco Common Shares issued on exercise of such Converted Options) that collectively make up the Lockup Securities may be Transferred at and following the 180th day following the Effective Date. Notwithstanding the foregoing, transfer or assign 100% of the Lockup Securities may be Transferred at and following the date on which the Closing Price (by operation as defined below) of law or otherwisethe Spinco Common Shares has exceeded the Nasdaq Threshold Price (as defined below) any Collateral except for a total of 20 consecutive Trading Days (as otherwise permitted in accordance with the Credit defined below). For purposes of this Agreement.:
Appears in 1 contract
Samples: Lockup Agreement (Inpixon)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:8.1. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(ia) except for As soon as practicable following the security interest created by date of this Agreement, the Company and Acquiror shall prepare and file with the SEC the Joint Proxy Statement and Acquiror thereafter shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the Company and Acquiror shall use their respective best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all best efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders, and Acquiror will use all best efforts to cause the Joint Proxy Statement to be mailed to Acquiror's stockholders in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Acquiror shall also take any action required to be taken under any applicable state securities laws in connection with the issuance of Acquiror Common Stock in the Merger. No filing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by Acquiror without providing the Company the opportunity to review and comment thereon. Acquiror will advise the Company, promptly after it shall not create receives notice thereof, of the time when the Form S-4 has become effective or suffer any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Acquiror Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or -41- comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to exist the Effective Time any Lien upon information relating to the Company or with respect Acquiror, or any of their respective affiliates, officers or directors, should be discovered by the Company or Acquiror which should be set forth in an amendment or supplement to any of the CollateralForm S-4 or the Joint Proxy Statement, except Permitted Liensso that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority light of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateralcircumstances under which they were made, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) againstnot misleading, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, party which discovers such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it information shall promptly notify the Collateral Agent other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company and Acquiror.
(b) The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholder Meeting") for the purpose of obtaining the approval (the "Company Stockholder Approval") of a majority of the stockholders of the Company of this Agreement and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby, and shall use all commercially reasonable efforts to solicit from its stockholders proxies in writing favor of approval and adoption of this Agreement; PROVIDED, HOWEVER, that such recommendation is subject to any event that would reasonably be expected action required by the fiduciary duties of the Board of Directors.
(c) Acquiror shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Acquiror Stockholder Meeting") for the purpose of obtaining the approval (the "Acquiror Stockholder Approval") of a majority of the stockholders of Acquiror of an increase in the authorized common stock of Acquiror, the issuance of the Acquiror Common Stock in connection with the Merger (the "Issuance") and shall, through its Board of Directors, recommend to have a Material Adverse Effect its stockholders the approval and adoption of this Agreement, the Merger, the Issuance and the other transactions contemplated hereby, and shall use all commercially reasonable efforts to solicit from its stockholders proxies in favor of approval and adoption of this Agreement.
(d) Acquiror and the Company will use best efforts to hold the Company Stockholder Meeting and the Acquiror Stockholder Meeting on the value of same date and as soon as practicable after the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementdate hereof.
Appears in 1 contract
Samples: Merger Agreement (Shared Technologies Fairchild Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or or, except where the failure to do so could not be reasonably expected to have a Material Adverse Effect, any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have shall, promptly after such change, and in no event later than 15 days after such change (a) notified notify the Collateral Agent Trustee in writing, by executing and delivering to the Collateral Agent Trustee a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent Trustee may reasonably request and (b) taken take all actions deemed reasonably necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral AgentTrustee’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if except to the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or extent otherwise expressly permitted by the use of any CollateralIndenture, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit AgreementProperly Contested; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(viiv) it shall not take or permit any action which would reasonably be expected to could materially impair the Collateral AgentTrustee’s rights in the Collateral; and
(viiivi) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementIndenture.
Appears in 1 contract
Samples: Pledge and Security Agreement (Euramax International, Inc.)
Covenants and Agreements. Each Grantor hereby I. Covenants and Agreements of the Issuer Trustee. ---------------------------------------------- The Issuer Trustee covenants and agrees thatwith each of the several Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class A-1 Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall execute those of the Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure that the charges created by or contained in the Security Trust Deed are registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it knows or has reason to believe would result in the Class A-1 Notes not being assigned the ratings referred to in Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic Document nor execute any of the Basic Documents other than in the agreed form without the consent of the Underwriters;
(i) except in connection with the initial distribution of the Class A-2 Notes and the Class B Notes, it and each person acting on its behalf (other than the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the Dealer Agreement)) has not and will not offer for issue, or invite applications for the security interest created issue of, the Class A-2 Notes and the Class B Notes or offer the Class A-2 Notes and the Class B Notes for sale or invite offers to purchase the Class A-2 Notes and the Class B Notes to a person, where the offer or invitation is received by this Agreementthat person in Australia, it shall not create unless the minimum amount payable for the Class A-2 Notes or suffer to exist the Class B Notes (as the case may be) (after disregarding any Lien upon or with respect to amount lent by any of the Collateral, except Permitted Liens, and such Grantor shall defend CBA Parties or any associate (as determined under sections 10 to 17 of the Collateral against all Persons at any time claiming any interest therein;
(iiCorporations Law) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision CBA Party) on acceptance of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., offer by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, that person is at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in A$500,000 or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used offer or invitation otherwise does not require disclosure to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted investors in accordance with Part 6D.2 of the Credit AgreementCorporations Law.
Appears in 1 contract
Samples: Underwriting Agreement (Securitisation Advisory Services Pty LTD)
Covenants and Agreements. Each Grantor In order to induce Lender to forbear from the exercise of certain of its rights and remedies with respect to the Existing Defaults, Borrower hereby covenants and agrees thatwith Lender as follows:
(a) Borrower shall, upon notice from Lender, make Borrower Representatives available for meetings with Lender. Borrower shall cooperate fully, and shall cause each Borrower Representative to cooperate fully, in furnishing information and taking such other action as and when requested by Lender regarding Borrower’s assets, affairs, financial condition and operations. Borrower authorizes Lender to meet or have discussions with any Borrower Representative from time to time to discuss any matters regarding Borrower’s assets, affairs, condition (financial or otherwise) and operations, and shall direct and authorize, and hereby directs and authorizes, all Borrower Representatives to fully disclose to Lender all information requested by Lender regarding Borrower’s assets, affairs, condition (financial or otherwise) and operations. Borrower acknowledges and agrees that all fees, costs and expenses incurred or charged by Lender in connection with the analysis and review of Borrower’s assets, affairs, condition (financial or otherwise) and operations shall constitute a part of the Obligations that will be secured by the Collateral and shall be payable by Borrower upon demand by Lender. Borrower waives and releases any Borrower Representative from the operation and provisions of any confidentiality agreement with Borrower so that such Borrower Representative is not prohibited from providing information to Lender. Borrower shall promptly, when and as requested by Lender, provide Lender with access to Borrower’s original books and records and permit Lender to make copies thereof.
(i) except for the security interest created An Event of Default shall have occurred if Borrower fails to comply with any term, condition or covenant set forth in this Agreement or if any representation made by Borrower under or in connection with this Agreement, it Agreement shall not create prove to be false or suffer to exist misleading in any Lien upon or with material respect to any as of the Collateral, except Permitted Liens, date when made and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produceif an Event of Termination occurs, use or permit Lender has the right to exercise any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the its rights and remedies of described in the Collateral Agent in relation theretoLoan Agreement and the other Loan Documents, including, without limitation, including to cease the levy funding of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (request by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit AgreementBorrowers for Advances.
Appears in 1 contract
Samples: Forbearance Agreement (Vystar Corp)
Covenants and Agreements. Each Grantor hereby 3.1 The Policy Owner covenants and agrees thatwith the Lender:
(ia) except for to punctually pay or cause to be paid all premiums and other monies required to be paid to keep the security interest created by this AgreementPolicy in force and do or cause to be done all other acts and things as may be necessary to maintain the Policy in force and not do or omit to do any act or thing whereby the Policy could be terminated, it shall not create cancelled or suffer rescinded or otherwise become liable to exist any Lien upon forfeiture or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest thereinrendered void or voidable;
(iib) it shall to keep or cause to be kept at all times the Policy free and clear of any pledge, other assignment, priority, lien, hypothec or other charge or security;
c) without the Lender’s prior written consent, not produce, use to enter into any transaction or permit any Collateral transaction to be used unlawfully entered into which results or could result directly or indirectly in violation the sale, assignment, exchange or liquidation of any provision of this Agreement or any applicable statutethe Policy;
d) without the Lender’s prior written consent, regulation or ordinance or any policy of insurance covering not to transfer amounts from the Collateral if such violation could reasonably be expected Investment Accounts to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s nameother investment accounts within the Policy, identityif, corporate structure (e.g.at the time the transfer occurs, by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have the transfer (a) notified would cause the Collateral Agent in writing, by executing and delivering Outstanding Balance (less interest accrued thereon since the last anniversary date) to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on exceed the value of the Collateral Investment Accounts (less interest accrued thereon since the last anniversary date) immediately after the transfer, or (b) would cause a Default Event;
e) to provide the Lender with prompt notice of any material portion thereofevent which constitutes or which would constitute a Default Event under this Assignment Agreement;
f) to provide the Lender with prompt notice of any change of address of its residence;
g) to, upon receipt of notice from the Lender, indemnify and save harmless the Lender from and against all fees, losses, costs and expenses which the Lender may sustain, incur or become liable for by reason of exercising or otherwise enforcing its rights and recourses set out in this Assignment Agreement or pursuant to the law such as, but not limited to, recovering the Outstanding Balance, the ability preserving of the Policy, and the pleading, negotiating and litigating of its rights and recourses under this agreement pursuant to a Default Event in this Assignment Agreement or in the Loan Agreement;
h) to file all tax returns, pay all taxes or other charges, and make all remittances required to be paid and remitted by the Policy Owner under the Income Tax Act (Canada) within the prescribed time periods for such filings, payments or remittances;
i) without the prior written consent of the Lender, where the Policy Owner is a corporation, not to merge, amalgamate or otherwise enter into any other form of business combination with any other corporation or firm (“Successor Entity”) unless the Successor Entity assumes all the rights and obligations of the Policy Owner under this Assignment Agreement pursuant to an agreement in form and substance satisfactory to the Lender;
j) to comply with applicable laws in all material respects;
k) to immediately notify the Insurer of the assignment of the Policy by the Policy Owner in favour of the Lender by providing the Lender with a duly completed Notice to the Insurer Form; and
l) to execute a Compliance Certificate, which will be provided by the Lender, stating that the Policy Owner is in compliance with the terms and confirming the accuracy of the representations and warranties in this Assignment Agreement. This Compliance Certificate will be provided to the Policy Owner on each Anniversary Date.
3.2 The Lender shall not be responsible for any loss, cost or expense which the Policy Owner may sustain, incur or become liable for by reason of the exercise by the Lender of any Grantor of its powers contained herein, or the Collateral Agent negligence of any solicitor or agent contracted by the Lender in connection with the exercise by the Lender of any of its powers contained herein.
3.3 Where a payment of proceeds from the Policy would cause the Outstanding Balance (less interest accrued thereon since the last anniversary date) to dispose exceed the value of the Collateral Investment Accounts (less interest accrued thereon since the last anniversary date), the Lender may apply any such proceeds to repay the Outstanding Balance, in whole or in part. On the happening of any material portion thereofevent that causes Policy proceeds to be paid, the Policy Owner hereby irrevocably authorizes and directs the Insurer to pay the Policy proceeds to the Lender in an amount up to but not exceeding the amount of the Obligations at the time of such payment. For greater certainty, the Parties covenant and agree that any payment of Policy proceeds (net of costs, if any) must first be used to repay the Obligations and cannot first be used to repay any other debt the Borrower or the Guarantor may have with the Lender.
3.4 The collateral granted under this Assignment Agreement is a continuing security notwithstanding any extensions, modifications, amendments, or renewals with respect to the rights Loan Agreement. Without limiting the generality of the foregoing, the continuing security shall not be affected by a change in the amount of indebtedness, or a change in the representations, warranties and remedies covenants secured under this Assignment Agreement, nor by the repayment in whole or in part of the Outstanding Balance. The collateral assignment of the Policy shall remain in full force and effect until the execution and delivery of a release thereof from the Lender to the Policy Owner.
3.5 Any additional Loan Advances under the Loan Agreement shall also be secured under this Assignment Agreement and the securing of any such additional Loan Advances will have the same rank and will continue in force until such time as the Lender executes and delivers a release of this Assignment Agreement to the Policy Owner.
3.6 Policy loans shall not be permitted while there is an Outstanding Balance due to the Lender.
3.7 The Policy Owner may, without the Lender’s consent, transfer amounts from the Collateral Investment Account to other investment accounts within the Policy provided that at the time the transfer occurs it does not (a) cause the value of the Collateral Agent in relation theretoInvestment Account (less interest accrued thereon since the last anniversary date) to be reduced to less than the Outstanding Balance (less interest accrued thereon since the last anniversary date) immediately after the transfer, including, without limitationor (b) cause a Default Event.
3.8 Notwithstanding any other provision of this section 3, the levy of any legal process Lender shall have full rights, remedies and recourse against the Collateral Policy Owner to the extent that there is a reduction or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights impairment in the Collateral; and
Policy that arises from a claim made by any taxing authority against the Policy pursuant to the provisions of the Income Tax Act (viiiCanada) it or similar legislation. The Policy Owner shall not sellindemnify and save harmless the Lender from any costs, transfer losses and expenses that the Lender may incur, sustain or assign (by operation become liable for as a consequence of law such reduction or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementimpairment.
Appears in 1 contract
Samples: Collateral Assignment Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees It is agreed that:
(ia) except for the security interest created Issuer and the Guarantor shall promptly inform the Dealer of any new material fact, event or circumstance with regard to themselves that could influence the opinion of the holders of or potential investors in the Treasury Notes. ING needs this information to comply with its obligations to duly inform its potential investors of the financial position of the Issuer and/or the Guarantor;
(b) the Issuer and the Guarantor will comply with the relevant rules, regulations and requirements of any authority in order to respect any regulation applicable to the issue of Treasury Notes and, in particular, that they will prepare and up-date the Information Memorandum and any other report, schedule or any other document which would be required by this Agreementthe Law or the Royal Decree;
(c) the Issuer undertakes to respect the maximum amount of the Programme;
(d) neither the Issuer nor the Guarantor nor any of its respective affiliates (as defined in Rule 405 under the Securities Act), it shall not create nor any person acting on its behalf have engaged or suffer to exist will engage in any Lien upon or directed selling efforts (as defined in Regulation S under the Securities Act) with respect to the Treasury Notes. The Dealer covenants and agrees the following:
(a) the Dealer warrants, represents and agrees to indemnify and hold harmless the Issuer and the Guarantor for and against any and all losses, claims, damages, liabilities, expenses, actions and demands to which the Issuer and the Guarantor may become subject under the law of any jurisdiction or which may be made against them directly arising out of or directly in connection with the breach by the Dealer or by its agents or persons acting on its behalf of any of the Collateralterms and conditions of this Agreement (including for the avoidance of doubt, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest thereinSelling Restrictions set out in Clause 8);
(iib) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing Dealer represents and delivering warrants to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, Issuer at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of the Dealer Agreement and at each Issue Date that all consents, authorisations, licences or approvals of and registrations and filings with any proposed sale Belgian governmental or regulatory authority required in connection with the issue by the Issuer of Treasury Notes under any judgment, writ or warrant of attachment entered or filed against such Grantor or any the Dealer Agreement and the performance of the Collateral as a result of Dealer's obligations under the failure to make such payment;
(vi) upon such Grantor or Dealer Agreement, any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify other related Agreements and the Collateral Agent in writing of any event that would reasonably be expected to Information Memorandum have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the Credit Agreementbeen obtained.
Appears in 1 contract
Samples: Dealer Agreement (Harsco Corp)
Covenants and Agreements. Each Grantor hereby I. The Issuer Trustee covenants and agrees thatwith each of the several Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it becomes actually aware of any matter which would make any of its representations and warranties in this Agreement untrue if given at any time prior to payment being made to the Issuer Trustee on the Closing Date and take such steps as may be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods and services or similar tax, fee or duty (including court fees) in relation to the execution of, or any transaction carried out pursuant to, the Agreements or in connection with the issue and distribution of the Class A-1 Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before the Closing Date of the conditions referred to in Section 6 below which relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall execute those of the Basic Documents not executed on the date hereof on or before the Closing Date, and (ii) the Issuer Trustee will assist the Representative to make arrangements with DTC, Euroclear and Clearstream concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure that the charges created by or contained in the Security Trust Deed are registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to which it is a party which are required to be performed prior to or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any action to be taken which it knows or has reason to believe would result in the Class A-1 Notes not being assigned the ratings referred to in Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic Document nor execute any of the Basic Documents other than in the agreed form without the consent of the Underwriters;
(i) provided the Manager complies with Section 5.II.(r), the Issuer Trustee will:
(i) except for sign and deliver to the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any UK Listing Authority a listing application and copies of the Collateral, except Permitted Liens, and such Grantor shall defend Prospectus on or prior to the Collateral against all Persons at any time claiming any interest thereinClosing Date;
(ii) it ensure that the Prospectus shall not produce, use be approved as listing particulars by or permit any Collateral to be used unlawfully or in violation on behalf of any provision the UK Listing Authority as required by Section 144(2) of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;Financial Services Act and the Listing Rules; and
(iii) it ensure that two copies of the Prospectus shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering be delivered to the Collateral Agent a completed Pledge Supplement, substantially Registrar of Companies in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name England and providing such other information in connection therewith Wales for registration as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority required by Section 149 of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent Financial Services Act, on or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to before the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion publication thereof;
(viij) it shall not take to procure that if, after the Prospectus has been published and following the admission of the Class A-1 Notes to the Official List of the UK Listing Authority and admission of the Class A-1 Notes to trading on the London Stock Exchange:
(i) there is a significant change affecting any matter contained in the Prospectus the inclusion of which was required by Section 146 of the Financial Services Act or permit any action by the Listing Rules or by the UK Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information in respect of which would have been so required if it had arisen when the Prospectus was prepared, to notify the Representative on behalf of the Underwriters as soon as reasonably be expected practicable and, in accordance with the Listing Rules, to materially impair submit to the Collateral Agent’s rights in UK Listing Authority for its approval and, if approved, publish a supplement to the CollateralOffering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act, it will, before it issues any Class A-1 Note, seek a listing of the Class A-1 Notes on the Official List of the UK Listing Authority and the admission of the Class A-1 Notes to trading on the London Stock Exchange, and use its best efforts to maintain such listing for as long as any of the Class A-1 Notes are outstanding; provided, however, if such listing becomes impossible, to use their best efforts to obtain, and will thereafter use its best efforts to maintain a quotation for, or listing of, the Class A-1 Notes on such other exchange as is commonly used for the quotation or listing of debt securities as they may, with the approval of Salomon, decide; and
(viiil) in connection with the initial distribution of the Class A-2 Notes and the Class B Notes, it shall and each person acting on its behalf (other than the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the Dealer Agreement)) has not selland will not offer for issue, transfer or assign invite applications for the issue of, the Class A-2 Notes and the Class B Notes or offer the Class A-2 Notes and the Class B Notes for sale or invite offers to purchase the Class A-2 Notes and the Class B Notes to a person, where the offer or invitation is received by that person in Australia, unless the minimum amount payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after disregarding any amount lent by operation any of law the CBA Parties or otherwiseany associate (as determined under sections 10 to 17 of the Corporations Law) of any Collateral except as CBA Party) on acceptance of the offer by that person is at least A$500,000 or the offer or invitation otherwise permitted does not require disclosure to investors in accordance with the Credit Agreement.Part 6D.2
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Samples: Underwriting Agreement (Securitisation Advisory Services Pty LTD)
Covenants and Agreements. Each Grantor hereby covenants and agrees that:
(i) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse EffectCollateral;
(iiiii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise)structure, sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen thirty (1530) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office office, type of organization or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iviii) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(viv) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreementfaith; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to make such payment;
(viv) upon such Grantor or any Senior Officer officer of such Grantor obtaining actual knowledge thereof, it shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected to have a Material Adverse Effect on materially and adversely affect the value of the Collateral or any material portion thereof, the ability of any Grantor or the Collateral Agent to dispose of the Collateral or any material portion thereof, or the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any material portion thereof;
(viivi) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viiivii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with Permitted Sales; provided, that so long as (1) no Event of Default shall have occurred and is then continuing or would occur after giving effect to a Permitted Sale and (2) to the extent required by Section 2.13(a) of the Credit Agreement, the Net Asset Sale Proceeds with respect to such Permitted Sale are used as set forth in such Section 2.13(a) contemporaneously with such Permitted Sale, the Collateral Agent shall release the Lien hereof encumbering the Collateral that is the subject of such Permitted Sale. The Collateral Agent shall execute each and every appropriate financing statement and/or recording document reasonably requested by any Grantor in connection with the foregoing. Any expense or cost incurred by the Collateral Agent in connection with any such release shall be for the account of the applicable Grantor.
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Covenants and Agreements. 10.1 Each Grantor hereby covenants of the Sellers agrees that it will, at any time and agrees that:from time to time, after the Closing, upon request of the Buyer, do, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to convey and transfer to and vest in the Buyer and protect its rights, title and interest in and enjoyment of all the Assets.
10.2 The parties hereto shall use their reasonable best efforts to obtain, and to cooperate with each other in obtaining, all authorizations, approvals, licenses, permits and other consents contemplated by Articles VIII and IX.
10.3 During the period from the date of this Agreement through the Closing Date, the Sellers will conduct the operation of their respective Businesses in the ordinary course and in accordance with past practices.
10.4 From the date hereof until the Closing, each of the Sellers shall afford to the Buyer, its attorneys, accountants and such other representatives of the Buyer as the Buyer shall designate to such Seller, free and full access at all reasonable times, and upon reasonable prior notice, to the Assets and the properties, books and records of such Seller, and to interview personnel, suppliers and customers of such Seller, in order that the Buyer may have full opportunity to make such due diligence investigation as it shall reasonably desire of the Assets, the Liabilities and the Businesses.
10.5 In connection with the Buyer's due diligence investigation, the Sellers shall allow an environmental consulting firm selected by the Buyer (the "Environmental Auditor") to have prompt access to the Real Property in order to conduct an environmental investigation, satisfactory to the Buyer in scope (such scope being sufficient to result in a Phase I environmental audit report and a Phase II environmental audit report, if desired by the Buyer), of, and to prepare a report with respect to, the Real Property (the "Environmental Audit"). Each of the Sellers shall provide to the Environmental Auditor: (i) reasonable access to all of its existing records concerning the matters which are the subject of the Environmental Audit; and (ii) reasonable access to the employees of such Seller and the last known addresses of former employees of such Seller who are most familiar with the matters which are the subject of the Environmental Audit (such Seller agreeing to use reasonable efforts to have such former employees respond to any reasonable requests or inquiries by the Environmental Auditor). The Sellers shall otherwise cooperate with the Environmental Auditor in connection with the Environmental Audit. The Buyer, on the one hand, and the Sellers, on the other hand, shall each bear 50% of the costs, fees and expenses in connection with the Environmental Audit.
10.6 All representations and warranties of the Sellers (which shall include all statements contained in any schedule or certificate furnished or delivered by the Sellers) shall survive the Closing for a period of three (3) years, except for the security interest created representations and warranties in Sections 7.4, 7.6, 7.8(b) and 7.10 which shall survive the Closing until the expiration of the applicable statutes of limitation. The Sellers and the Stockholder, jointly and severally, agree to indemnify and hold harmless the Buyer and its officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them or asserted against any of them or the Assets (collectively, "Buyer's Damages"), arising out of or based upon: (a) the failure of any representation or warranty of the Sellers contained herein, or in any agreement, certificate, schedule or document executed by the Sellers or the Stockholder in connection herewith, to be true and correct in all material respects as of the Closing Date; provided, however, the Sellers and the Stockholder shall have no obligation to pay Buyer's Damages pursuant to this subsection 10.6(a) unless and until (and only to the extent that) all claims in respect of Buyer's Damages exceed a cumulative aggregate total of Fifty Thousand Dollars ($50,000); (b) the breach of any covenant or agreement of the Sellers or the Stockholder contained in this Agreement; (c) any liability or obligation of the Sellers or the Stockholder not expressly assumed by the Buyer pursuant to this Agreement; or (d) any arrangements or agreements made or alleged to have been made by the Sellers or the Stockholder with any broker, finder or other agent in connection with the transactions contemplated hereby; provided, further, that the aggregate amount of Buyer's Damages required to be paid by the Seller and the Stockholder shall not exceed Twenty-Five Million Dollars ($25,000,000).
10.7 All representations and warranties of the Buyer (which shall include all statements contained in any schedule or certificate furnished or delivered by the Buyer) shall survive the Closing for a period of three (3) years. The Buyer agrees to indemnify and hold harmless each of the Sellers and its Stockholder, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them, or asserted against any of them, arising out of or based upon (a) the failure of any representation or warranty of the Buyer contained herein, or in any agreement, certificate or document executed by the Buyer in connection herewith, to be true and correct in all material respects as of the Closing Date, (b) the breach of any covenant or agreement of the Buyer contained in this Agreement, (c) the Liabilities, or (d) any arrangements or agreements made or alleged to have been made by the Buyer with any broker, finder or other agent in connection with the transactions contemplated hereby.
10.8 Personal property, use and intangible taxes and assessments with respect to the Assets shall be prorated on a per diem basis and apportioned between the Sellers and the Buyer as of the date of the Closing. The Sellers shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, periods on or prior to the Closing Date, and the Buyer shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, any period after the Inventory Date. Any sale or transfer taxes attributable to the sale or transfer of the Assets to the Buyer hereunder shall be paid by the Sellers.
10.9 Except as may be required by law or the rules of the New York Stock Exchange or as necessary in connection with the transactions contemplated hereby, no party hereto shall (i) make any press release or other public announcement relating to this Agreement or the transactions contemplated hereby, without the prior approval of the other parties hereto or (ii) otherwise disclose the existence and nature of negotiations regarding the transactions contemplated hereby to any person or entity other than such party's accountants, attorneys, agents and representatives, all of whom shall be subject to this nondisclosure obligation as agents of such party. The parties shall cooperate with each other in the preparation and dissemination of any public announcements of the transactions contemplated by this Agreement.
10.10 None of the Sellers or the Stockholder shall pursue, it shall not create initiate, encourage or suffer engage in, any negotiations or discussions with, or provide any information to, any person or entity (other than the Buyer and its representatives and affiliates) regarding the sale or possible sale to exist any Lien upon such person or with respect to entity of any of the Collateral, except Permitted Liens, and such Grantor shall defend the Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use Assets or permit any Collateral to be used unlawfully or in violation capital stock of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral if such violation could reasonably be expected to have a Material Adverse Effect;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least fifteen (15) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business, chief executive office or jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) if the Collateral Agent or any other Secured Party gives value to enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Obligation shall apply on a “first-in, first-out” basis so that the portion of the value used to acquire rights in any Collateral shall be paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith and as otherwise provided in the Credit Agreement; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result Sellers or any merger or consolidation or similar transaction involving any of the failure to make such payment;Sellers.
(vi) upon such Grantor or any Senior Officer of such Grantor obtaining actual knowledge thereof, it 10.11 The Sellers shall promptly notify the Collateral Agent in writing of any event that would reasonably be expected Manufacturers regarding the transactions contemplated by this Agreement. The Buyer shall promptly apply to have a Material Adverse Effect on the value Manufacturers for, or cause an affiliate of the Collateral or any material portion thereofBuyer to apply to the Manufacturers for, the ability issuance of franchises to operate the respective automobile dealerships upon the Real Property. Effective as of the Closing, each of the Sellers shall terminate its Dealer Sales and Service Agreements with the Manufacturers. The Sellers shall fully cooperate with the Buyer, and take all reasonable steps to assist the Buyer, in the Buyer's efforts to obtain its own similar Dealer Sales and Service Agreements with the Manufacturers. The parties acknowledge that the Buyer's Dealer Agreements are subject to the approval of the Manufacturers and that the Buyer would be unable to obtain its own, similar Dealer Sales and Service Agreements absent the Sellers' termination of their respective agreements with the Manufacturers.
10.12 The Buyer shall have the right, but not the obligation, to employ any Grantor or all of the Sellers' employees. If permitted by law and applicable regulations, each Seller shall, in consideration for the sale of substantially all of such Sellers' assets in bulk, assign and transfer to the Buyer, without additional charge therefor, the amount of reserve in such Seller's State Unemployment Compensation Fund with respect to the Businesses and the corresponding experience rate.
10.13 Subject to the determination by the Buyer that any of the following actions is not required, the Sellers and the Buyer shall promptly prepare and file Notification and Report Forms under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") with the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "Antitrust Division") and respond as promptly as practicable to all inquiries received from the FTC or the Collateral Agent Antitrust Division for additional information or documentation.
10.14 The Sellers shall allow, cooperate with and assist the Buyer's accountants, and shall instruct the Sellers' accountants to dispose cooperate, in the preparation of audited financial statements of the Collateral or Sellers as necessary for any material portion thereof, or required filings by the rights and remedies of the Collateral Agent in relation thereto, including, without limitation, the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which would reasonably be expected to materially impair the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance Buyer with the Credit AgreementSecurities and Exchange Commission or with the Buyer's lenders; provided, however, that the expense of such audit shall be borne by the Buyer.
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