Covenants and Undertakings. 8.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date. 8.2 The Borrower hereby covenants with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder: (a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender; (b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender; (c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld; (d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender; (e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year; (f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following: (i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements); (ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and (iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower; (g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business; (h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments; (i) the Borrower shall forthwith notify the Lender in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and the amount of contingent liability, if such amount is ascertainable; (j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations; (k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director; (l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any); (m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with the authorisations by the Board of Directors, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and (o) the Borrower shall notify the Lender of the occurrence of any Event of Default immediately upon becoming aware of it. 8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and: (a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or (b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3. 8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder. 8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
Appears in 4 contracts
Samples: Convertible Loan Agreement (CytoMed Therapeutics LTD), Convertible Loan Agreement (CytoMed Therapeutics Pte. Ltd.), Convertible Loan Agreement (CytoMed Therapeutics Pte. Ltd.)
Covenants and Undertakings. 8.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in (A) At any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long such time as any amount is shares of Common Stock are traded on the NMM or may be outstanding under this Agreement or listed on any part of national securities exchange, the Convertible Loan remains outstanding or Purchaser will, at its expense, obtain promptly and maintain the Borrower continues to have any obligation hereunder:
(a) approval for trading on the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliverNMM, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify the Lender in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and the amount of contingent liability, if such amount is ascertainable;
(j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Event of Default immediately upon becoming aware of it.
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, listing on each such exchange of the Second Drawing, shares of Common Stock issuable upon conversion or redemption of then outstanding Convertible Preferred Stock and for as long as full repayment maintain such approval and/or the listing of such shares of Common Stock after their issuance.
(B) Each share of Convertible Preferred Stock (including each share of Convertible Preferred Stock issued upon the Transfer of any share of Convertible Preferred Stock or otherwise issued pursuant to the terms of the Convertible Loan remains outstandingPreferred Stock) shall be stamped or otherwise imprinted with a legend in substantially the following form: "This share of Convertible Preferred Stock and any shares issued or acquired upon the conversion or redemption of this share of Convertible Preferred Stock have not been registered under the Securities Act of 1933, as amended, or any event shall occur which results state securities laws and, unless so registered, may not be offered, sold, transferred or may result otherwise disposed of except pursuant to an exemption from, or in a breach transaction not subject to, the registration requirements of such Act and applicable state securities laws. In addition, this share of Convertible Preferred Stock and such shares may be transferred, sold or otherwise be disposed of only in compliance with the conditions specified in an agreement dated October 7, 1996 between Swalec Telco Investments Limited, South Wales Electricity plc and International CableTel Incorporated including, without limitation, the condition that this share of Convertible Preferred Stock may not be transferred, sold or otherwise be disposed of without the prior written consent of the International CableTel Incorporated. A complete and correct copy of the form of such agreement is available for inspection at the principal office of International CableTel Incorporated."
(C) Except as otherwise permitted by this clause 10, each certificate for any shares of Common Stock issued upon conversion or redemption of the Convertible Preferred Stock or issued otherwise pursuant to the terms of the Convertible Preferred Stock, and each certificate issued upon the Transfer of any such Common Stock, shall be stamped or otherwise imprinted with a legend in substantially the following form: "The shares represented by this certificate have not been registered under the Securities Act of 1933 or any state securities laws and, unless so registered, may not be offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of such Act and applicable state securities laws. In addition, such shares may be transferred, sold or otherwise be disposed of only in compliance with the conditions specified in a Share Purchase Agreement dated October 7, 0000, xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx, Xxxxx Xxxxx Electricity plc and International CableTel Incorporated. A complete and correct copy of the form of such agreement is available for inspection at the principal office of International CableTel Incorporated."
(D) Without prejudice to sub-clause (I), before any Transfer of any Restricted Securities which are not registered under an effective registration statement under the Securities Act, other than a Transfer of such securities by the Borrower Seller to SWALEC, the Holder thereof will give written notice to the Purchaser of that holder's intention to effect such Transfer.
(E) Subject to sub-clause (I), a Holder who has complied with sub-clause (D) shall be permitted to Transfer any Restricted Securities to a person (each, a "Transferee") if, prior to such Transfer: -
(i) the Transferee represents to the Purchaser in writing that it is - acquiring such Restricted Securities for investment and not with a view to the distribution thereof (subject, however, to any requirement of law that the disposition thereof shall at all times be within the control of such transferee), (ii) the Transferee agrees in writing with the Purchaser to be bound by, -- and to comply in all respects with, the provisions of this clause 10 and clause 11 (Registration under the Securities Act); and (iii) the Purchaser receives an opinion reasonably satisfactory to it of --- Xxxxxxxxxxx Xxxxx & Xxxxxxxx or other U.S. Counsel reasonably satisfactory to the Purchaser, stating that such Transfer may be effected without registration under the Securities Act (which opinion shall be delivered at the expense of the Holder of the Restricted Securities).
(F) The restrictions imposed by sub-clauses (B) to (E) shall cease and terminate as to any particular Restricted Securities when:
(i) a registration statement with respect to such Restricted Securities shall have become effective under the Securities Act, or
(ii) the Purchaser receives an opinion (reasonably satisfactory to the Purchaser) of Xxxxxxxxxxx Xxxxx & Xxxxxxxx or other U.S. counsel reasonably satisfactory the Purchaser, stating that such restrictions are no longer required in order to ensure compliance with the Securities Act (which opinion shall be delivered at the expense of the Holder of the Restricted Securities).
(G) Whenever the restrictions imposed by sub-clauses (B) to (E) shall cease and terminate as to any Restricted Securities, the Holder thereof shall be entitled to receive from the Purchaser, without expense (other than applicable transfer taxes, if any), new certificates representing such securities not bearing the applicable legends required by sub-clauses (B) and (C) upon delivery of the legended certificates representing such securities to the Purchaser.
(H) The Purchaser will at all times reserve and keep available, for issuance and delivery upon conversion of the shares of Convertible Preferred Stock, the number of shares of Common Stock from time to time issuable upon conversion of the shares of Convertible Preferred Stock at the time outstanding. All shares of Common Stock issuable upon conversion of any shares of its obligations under Convertible Preferred Stock shall be duly authorized and, when issued upon such conversion, shall be validly issued, fully paid and nonassessable.
(I) Subject to sub-clause (J) but notwithstanding anything to the contrary in any other provision of this Clause 8agreement, the Borrower hereby Seller, SWALEC (if, subsequent to Completion, it becomes the Holder of Restricted Securities or Registrable Securities) and each other Holder of Restricted Securities or Registrable Securities who acquires such securities under sub-clause 10(E) by its acquisition of such securities, covenants and undertakes not to Transfer: -
(i) any shares of Convertible Preferred Stock or any interest therein to any person at any time without the Lender that it shall, upon becoming aware prior written consent of the same, immediately notify Purchaser (which consent may be withheld or delayed in the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.Purchaser's absolute discretion);
Appears in 1 contract
Samples: Share Purchase Agreement (International Cabletel Inc)
Covenants and Undertakings. 8.1 14.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants undertakes with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is owed to the Lender hereunder, it will comply with the covenants and undertakings set out in this Clause 14. The Borrower undertakes to promptly inform the Lender in writing of any occurrence or event which constitutes or may be outstanding under this Agreement or any part constitute a breach of the Convertible Loan remains outstanding or covenants and undertakings which apply to it pursuant to this Clause 14.
14.2 The Borrower undertakes to deliver to the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or such financial and other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of information as the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declarein its sole discretion, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following.
14.3 The Borrower further undertakes that as long as any amount is outstanding under this Credit Facility:
(ia) it will promptly inform the Lender of any occurrence or event of which it becomes aware which constitutes an Event of Default or will materially adversely affect the Borrower’s quarterly progress reports, ability to perform its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements)obligations hereunder or under any of the Finance Documents;
(iib) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify it will provide the Lender in writing writing, promptly upon becoming aware of all material them, relevant details of any litigation, arbitration or administrative proceedings to which Borrower is or may become a partyproceedings, in whatever capacityhereunder any environmental claim, which might have a material adverse effect on Borrower’s businessare current or, assets to its knowledge, threatened or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, pending against any Group Company and the amount of contingent liabilitywhich might, if such amount is ascertainable;
(j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businessesadversely determined, such as a strike, lock-out, lay-off, suspension of work or any other event likely be reasonably expected to have a material adverse effect on its ability to perform its obligations under the Finance Documents;
(c) it will not merge, demerge, consolidate or liquidate, without the prior written consent of the Lender;
(d) it will not make any changes in the nature of its business, legal structure or organisation without the Lender’s prior written consent;
(e) it will at all times manage its business in compliance with all relevant applicable laws and regulations and official permits, and notify the Lender immediately of any breach thereof;
(f) it will procure that any property of its property is insured in accordance with market practice for such property;
(g) it will not create or operationspermit to subsist, any encumbrance upon its present or future assets or revenues, unless permitted by the Lender;
(h) it will not dispose of the Shares of the shares of any material company or any other assets without the prior written consent of the Lender, save for disposals made in the ordinary course of business, at arm’s length and at fair market value, as long as such disposal does not have a material adverse effect on the Borrower’s financial or business status;
(i) it will not maintain or incur any (i) additional financial indebtedness or (ii) financial leasing obligations in excess of NOK 25,000,000 in aggregate without the prior written consent of the Lender;
(j) It will not grant any loans to any other persons or entities other than Group Companies; and
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in it will not pay any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain dividend or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) other payments to its shareholders without the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender prior written consent of the occurrence of any Event of Default immediately upon becoming aware of itLender.
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
Appears in 1 contract
Samples: Credit Facility Agreement (Trico Marine Services Inc)
Covenants and Undertakings. 8.1 10.1 The Borrower covenants and undertakes, from the entry into this Agreement to and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, including the day on which the Finance Documents are terminated and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with all rights and undertakes to claims of the Lender under or in connection with the Finance Documents are duly fulfilled, that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify provide to the Lender such information in writing of all material litigation, arbitration or administrative proceedings relation to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s its business, assets or operations and financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and position as the amount of contingent liability, if such amount is ascertainableLender may reasonably require;
(jii) the Borrower shall promptly notify provide, or cause UGI Corporation to provide, the Lender in writing with copies of the audited consolidated financial statements of UGI Corporation within three ninety (390) Business Days upon becoming aware days after the end of any event or change the period for which has a material adverse effect on they have been prepared, and copies of the Borrower or unaudited quarterly consolidated financial statements of UGI Corporation within forty-five (45) days after the end of the period for which is likely to they have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operationsbeen prepared;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Default and/or Event of Default immediately upon becoming aware of it.Default;
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e(iv) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower shall take out and maintain, or ensure that any of its affiliates takes out and maintains, insurance cover over the Borrower’s assets and other appropriate insurance cover including, but not limited to insurance cover for interruption of business and general liability, of a notice type and in writing notifying an amount which is consistent with good business practice;
(v) the Borrower shall ensure that its obligations under this Agreement do and will always rank at least pari passu with its other secured and unsecured obligations, other than obligations to creditors having preference as a matter of mandatory law and other than obligations which already exist and have preference when this Agreement is concluded; as regards the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”)latter obligations, the Borrower shall be liable use reasonable best efforts to pay provide promptly that such obligations having a material adverse impact on its ability to comply with the Lender a default payment terms of [*****] (“Default Payment”) this Agreement will have no preference in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, Agreement;
(vi) the Borrower hereby covenants shall not create or permit to exist any collateral or security interest in favor of one or more third parties on the whole or any part of its present or future property, assets or revenues, without the prior written consent of the Lender which shall not be unreasonably withheld. The provision in the first sentence of this clause 10.1(vi) shall not apply in respect of collateral or security interest created in the ordinary course of business, provided that it shallsuch collateral or security interest has no material negative impact on the Borrower’s ability to perform under this Agreement;
(vii) the Borrower shall not, upon becoming aware without the prior written consent of the sameLender which shall not be unreasonably withheld, immediately notify either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its property or assets. The provision in the first sentence of this clause 10.1(vii) shall not apply in respect of dispositions in the ordinary course of business, provided that such dispositions have no negative impact on the Borrower’s ability to perform under this Agreement; and
(viii) other than intercompany loans in favor of the Borrower’s subsidiaries the Borrower shall not make any loans or grant any credit or other financing of any kind to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of the obligations of any other person, except within the ordinary course of business, or with the prior written consent of the Lender in writing thereof and Borrower shall make all not to be unreasonably withheld, provided always that such investigations and/or do all such acts concerning loans, credits, other financings or liabilities have no material negative impact on the event or matter which the Lender may reasonably requireBorrower’s ability to perform under this Agreement.
Appears in 1 contract
Samples: Guarantee Agreement (Ugi Corp /Pa/)
Covenants and Undertakings. 8.1 10.1 The Borrower covenants and undertakes, from the entry into this Agreement to and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, including the day on which the Finance Documents are terminated and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with all rights and undertakes to claims of the Lender under or in connection with the Finance Documents are duly fulfilled, that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify provide to the Lender such information in writing of all material litigation, arbitration or administrative proceedings relation to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s its business, assets or operations and financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and position as the amount of contingent liability, if such amount is ascertainableLender may reasonably require;
(jii) the Borrower shall promptly notify provide, or cause UGI Corporation to provide, the Lender in writing with copies of the audited consolidated financial statements of UGI Corporation within three ninety (390) Business Days upon becoming aware days after the end of any event or change the period for which has a material adverse effect on they have been prepared, and copies of the Borrower or unaudited quarterly consolidated financial statements of UGI Corporation within forty-five (45) days after the end of the period for which is likely to they have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operationsbeen prepared;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Default and/or Event of Default immediately upon becoming aware of it.Default;
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e(iv) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower shall take out and maintain, or ensure that any of its affiliates takes out and maintains, insurance cover over the Borrower’s assets and other appropriate insurance cover including, but not limited to insurance cover for interruption of business and general liability, of a notice type and in writing notifying an amount which is consistent with good business practice;
(v) the Borrower shall ensure that its obligations under this Agreement do and will always rank at least pari passu with its other secured and unsecured obligations, other than obligations to creditors having preference as a matter of mandatory law and other than obligations which already exist and have preference when this Agreement is concluded; as regards the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”)latter obligations, the Borrower shall be liable use reasonable best efforts to pay provide promptly that such obligations having a material adverse impact on its ability to comply with the Lender a default payment terms of [*****] (“Default Payment”) this Agreement will have no preference in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8Agreement;
(vi) the Borrower shall not create or permit to exist any collateral or security interest in favor of one or more third parties on the whole or any part of its present or future property, assets or revenues, without the prior written consent of the Lender which shall not be unreasonably withheld. The provision in the first sentence of this clause 10.1 (vi) shall not apply in respect of collateral or security interest created in the ordinary course of business, provided that such collateral or security interest has no material negative impact on the Borrower’s ability to perform under this Agreement;
(vii) the Borrower shall not, without the prior written consent of the Lender which shall not be unreasonably withheld, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its property or assets. The provision in the first sentence of this clause 10.1 (vii) shall not apply in respect of dispositions in the ordinary course of business, provided that such dispositions have no negative impact on the Borrower’s ability to perform under this Agreement;
(viii) other than
(a) intercompany loans in favor of the Borrower’s subsidiaries (including, without limitation, Progas Austria) and the existing loan in the amount of EUR 11,407,482 granted by the Borrower to UGI France, Inc. (now known as UGI Europe, Inc.), and
(b) the Borrower’s undertakings set forth in that certain shareholders’ agreement regarding Zentraleuropa LPG Holding GmbH (as presented by the Borrower to the Lender prior to the entry into this Agreement) so long as the Borrower holds and controls a share of at least 50% in Zentraleuropa LPG Holding GmbH, the Borrower hereby covenants shall not make any loans or grant any credit or other financing of any kind to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of the obligations of any other person, except within the ordinary course of business, or with the prior written consent of the Lender not to be unreasonably withheld, provided always that it shallsuch loans, upon becoming aware credits, other financings or liabilities have no material negative impact on the Borrower’s ability to perform under this Agreement;
(ix) the Borrower hereby irrevocably grants a right of first refusal for any and all of its present and future lending transactions in favor of the sameLender. It is understood that the Borrower shall have the right to solicit offers from other banks in respect of such transactions. However, immediately notify the Lender in writing thereof shall have the right to enter into any or all of such transactions, and to provide all related services, at competitive market conditions, if among the banks , making offers, the Lender’s offer is at least as competitive as the best offer made among the other banks. It is understood that the Borrower shall make all such investigations and/or do all such acts concerning not accept a Lender’s offer not made at competitive market conditions;
(x) the event or matter which Borrower shall promptly upon demand by the Lender provide, or cause UGI Corporation to provide, the Lender with any and all documents and other information regarding the Borrower or any of the companies mentioned in clause 2.2(i) to (vi), which OeKB may reasonably requirerequest, and/or which have to be furnished by the Lender to OeKB, in connection with the OeKB Refinancing Agreement and/or the OeKB Commitment; and
(xi) the Borrower shall promptly inform the Lender about any and all changes regarding the share quota held by it indirectly in any of the companies mentioned in clause 2.2(i) to (vi), or regarding the purpose of its acquiring or holding of a share in any of such companies.
Appears in 1 contract
Samples: Guarantee Agreement (Ugi Corp /Pa/)
Covenants and Undertakings. 8.1 10.1 The Borrower covenants and undertakes, from the entry into this Agreement to and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, including the day on which the Finance Documents are terminated and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with all rights and undertakes to claims of the Lender under or in connection with the Finance Documents are duly fulfilled, that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify provide to the Lender such information in writing of all material litigation, arbitration or administrative proceedings relation to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s its business, assets or operations and financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and position as the amount of contingent liability, if such amount is ascertainableLender may reasonably require;
(jii) the Borrower shall promptly notify provide, or cause UGI Corporation to provide, the Lender in writing with copies of the audited consolidated financial statements of UGI Corporation within three ninety (390) Business Days upon becoming aware days after the end of any event or change the period for which has a material adverse effect on they have been prepared, and copies of the Borrower or unaudited quarterly consolidated financial statements of UGI Corporation within forty-five (45) days after the end of the period for which is likely to they have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operationsbeen prepared;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Default and/or Event of Default immediately upon becoming aware of it.Default;
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e(iv) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower shall take out and maintain, or ensure that any of its affiliates takes out and maintains, insurance cover over the Borrower’s assets and other appropriate insurance cover including, but not limited to insurance cover for interruption of business and general liability, of a notice type and in writing notifying an amount which is consistent with good business practice;
(v) the Borrower shall ensure that its obligations under this Agreement do and will always rank at least pari passu with its other secured and unsecured obligations, other than obligations to creditors having preference as a matter of mandatory law and other than obligations which already exist and have preference when this Agreement is concluded; as regards the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”)latter obligations, the Borrower shall be liable use reasonable best efforts to pay provide promptly that such obligations having a material adverse impact on its ability to comply with the Lender a default payment terms of [*****] (“Default Payment”) this Agreement will have no preference in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, Agreement;
(vi) the Borrower hereby covenants shall not create or permit to exist any collateral or security interest in favor of one or more third parties on the whole or any part of its present or future property, assets or revenues, without the prior written consent of the Lender which shall not be unreasonably withheld. The provision in the first sentence of this clause 10.1(vi) shall not apply in respect of collateral or security interest created in the ordinary course of business, provided that it shallsuch collateral or security interest has no material negative impact on the Borrower’s ability to perform under this Agreement;
(vii) the Borrower shall not, upon becoming aware without the prior written consent of the sameLender which shall not be unreasonably withheld, immediately notify either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its property or assets. The provision in the first sentence of this clause 10.1 (vii) shall not apply in respect of dispositions in the ordinary course of business, provided that such dispositions have no negative impact on the Borrower’s ability to perform under this Agreement; and
(viii) other than intercompany loans in favor of the Borrower’s subsidiaries the Borrower shall not make any loans or grant any credit or other financing of any kind to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of the obligations of any other person, except within the ordinary course of business, or with the prior written consent of the Lender in writing thereof and Borrower shall make all not to be unreasonably withheld, provided always that such investigations and/or do all such acts concerning loans, credits, other financings or liabilities have no material negative impact on the event or matter which the Lender may reasonably requireBorrower’s ability to perform under this Agreement.
Appears in 1 contract
Samples: Guarantee Agreement (Ugi Corp /Pa/)
Covenants and Undertakings. 8.1 10.1 The Borrower covenants and undertakes, from the entry into this Agreement to and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, including the day on which the Finance Documents are terminated and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with all rights and undertakes to claims of the Lender under or in connection with the Finance Documents are duly fulfilled; that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify provide to the Lender such information in writing of all material litigation, arbitration or administrative proceedings relation to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s its business, assets or operations and financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and position as the amount of contingent liability, if such amount is ascertainableLender may reasonably require;
(jii) the Borrower shall promptly notify provide, or cause UGI Corporation to provide, the Lender in writing with copies of the audited consolidated financial statements of UGI Corporation within three ninety (390) Business Days upon becoming aware days after the end of any event or change the period for which has a material adverse effect on they have been prepared, and copies of the Borrower or unaudited quarterly consolidated financial statements of UGI Corporation within forty-five (45) days after the end of the period for which is likely to they have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operationsbeen prepared;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Default and/or Event of Default immediately upon becoming aware of it.Default;
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e(iv) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower shall take out and maintain, or ensure that any of its affiliates takes out and maintains, insurance cover over the Borrower’s assets and other appropriate insurance cover including, but not limited to insurance cover for interruption of business and general liability, of a notice type and in writing notifying an amount which is consistent with good business practice;
(v) the Borrower shall ensure that its obligations under this Agreement do and will always rank at least pari passu with its other secured and unsecured obligations, other than obligations to creditors having preference as a matter of mandatory law and other than obligations which already exist and have preference when this Agreement is concluded; as regards the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”)latter obligations, the Borrower shall be liable use reasonable best efforts to pay provide promptly that such obligations having a material adverse impact on its ability to comply with the Lender a default payment terms of [*****] (“Default Payment”) this Agreement will have no preference in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8Agreement;
(vi) the Borrower shall not create or permit to exist any collateral or security interest in favor of one or more third parties on the whole or any part of its present or future property, assets or revenues, without the prior written consent of the Lender which shall not be unreasonably withheld. The provision in the first sentence of this clause 10.1(vi) shall not apply in respect of collateral or security interest created in the ordinary course of business, provided that such collateral or security interest has no material negative impact on the Borrower’s ability to perform under this Agreement;
(vii) the Borrower shall not, without the prior written consent of the Lender which shall not be unreasonably withheld, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its property or assets. The provision in the first sentence of this clause 10.1(vii) shall not apply in respect of dispositions in the ordinary course of business, provided that such dispositions have no negative impact on the Borrower’s ability to perform under this Agreement;
(viii) other than
(a) intercompany loans in favor of the Borrower’s subsidiaries (including, without limitation, Progas Austria) and the existing loan in the amount of EUR 11,407,482 granted by the Borrower to UGI France, Inc. (now known as UGI Europe, Inc.), and
(b) the Borrower’s undertakings set forth in that certain shareholders’ agreement regarding Zentraleuropa LPG Holding GmbH (as presented by the Borrower to the Lender prior to the entry into this Agreement) so long as the Borrower holds and controls a share of at least 50% in Zentraleuropa LPG Holding GmbH, the Borrower hereby covenants shall not make any loans or grant any credit or other financing of any kind to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of the obligations of any other person, except within the ordinary course of business, or with the prior written consent of the Lender not to be unreasonably withheld, provided always that it shallsuch loans, upon becoming aware credits, other financings or liabilities have no material negative impact on the Borrower’s ability to perform under this Agreement; and
(ix) the Borrower hereby irrevocably grants a right of first refusal for any and all of its present and future lending transactions in favor of the sameLender. It is understood that the Borrower shall have the right to solicit offers from other banks in respect of such transactions. However, immediately notify the Lender in writing thereof shall have the right to enter into any or all of such transactions, and to provide all related services, at competitive market conditions, if among the banks making offers, the Lender’s offer is at least as competitive as the best offer made among the other banks. It is understood that the Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably requirenot accept a Lender’s offer not made at competitive market conditions.
Appears in 1 contract
Samples: Guarantee Agreement (Ugi Corp /Pa/)
Covenants and Undertakings. 8.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower Guarantor hereby covenants with and undertakes to with the Lender that, subject to disbursement Owner that from the date of the First Drawing to the Borrower, this Guarantee and for as so long as any amount is moneys, obligations and liabilities are due, owing or may be outstanding incurred by the Charterer under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunderBareboat Charterparty:
(a1) the Borrower shall make no grant Guarantor will promptly inform the Owner of the occurrence of any loan or advance to any person, firm, body corporate or other business save in the ordinary course Event of business, without the prior consent of the LenderDefault;
(b2) the Borrower Guarantor shall make no grant of any guarantee submit to the Owner the audited individual (or create or issue any debenture, mortgage, charge or other security, without consolidated in the prior consent case of the Lender;
(cGuarantor) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent annual financial statements of the Lender, which shall not be unreasonably withheld;
Charterers and the Guarantor (d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement accompanying notes) as soon as available and its in no event later than 180 days after the end of each of their respective financial years, and the unaudited monthly management accounts (comprising balance sheetssemi-annual aforesaid statements of the Charterer and the Guarantor, profit within 90 days after the end of each semi-annual period during each of the Charterers’ and loss statements and cash flow statements)the Guarantor’s financial years;
(ii3) the Borrower’s audited financial statements (comprising balance sheetsGuarantor will procure that at all times all governmental consents required by law for the validity, profit enforceability, legality and loss statements, cash flow statements admissibility in evidence of this Guarantee and of all matters herein contemplated and of the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided performance thereof by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the BorrowerGuarantor remain in full force and effect;
(g4) Any indebtedness of the Borrower Charterer now or hereafter held by the Guarantor shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating be subordinated to the carrying indebtedness of the Charterer to the Owner and such indebtedness of the Charterer to the Guarantor if the Owner so requires shall be collected, enforced and received by the Guarantor as trustee for the Owner and shall be paid over to the Owner on account of its business and keep the indebtedness of the Charterer to the Owner but without reducing or cause affecting in any manner the liability of the Guarantor under this Guarantee until the Guaranteed Obligations has been fully paid to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its businessOwner;
(h5) This Guarantee shall continue to bind the Borrower Guarantor notwithstanding: - (a) any change in the constitution of the Charterer (whether by amalgamation, reconstruction or otherwise) by which the business of the Charterer may for the time being be carried on and shall duly pay and be available to the Charterer carrying on the business of the Charterer for the time being; (b) any winding-up (whether voluntary or compulsory), judicial management, amalgamation, reconstruction of, bankruptcy, death, insanity or other disability or affecting the Charterer or any defect, informality or insufficiency of the Charterer’s borrowing powers; or (c) any winding-up (whether voluntary or compulsory), judicial management, amalgamation, reconstruction of, bankruptcy, death, insanity or any other disability of any other Guarantor (if any) or any other person.;
(6) The Guarantor shall not be discharged or released from this Guarantee by any of the following: -
(a) any partial payments or settlement of accounts or the existence of a credit balance of the Charterer at any time or by discharge all rents, rates, assessments, taxes of the Charterer by operation of law or for any other reason; or (including corporate tax, property tax, sales tax, goods and services tax, import tax, and b) any other governmental, state and provincial taxes and levies) and all outgoings and all charges payable guarantee or security obtained by the Owner either from the Charterer or the Guarantor or from any other person in respect of its assets indebtedness covered by this Guarantee.
(7) Any release, compromise or income prior discharge of the obligations of the Guarantor under this Guarantee will be deemed to be made subject to the date when penalties become attached theretocondition that it will be void if any payment or security which the Owner may receive or have received is set aside or proves invalid for whatsoever reason. Without limiting the generality of the foregoing, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify the Lender in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on BorrowerOwner’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, rights and the amount of contingent liability, if such amount is ascertainable;
(j) the Borrower Guarantor’s obligations hereunder shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely be deemed to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, remain in full force and effect all governmental approvals, filings and recordings necessary notwithstanding that the obligations of the Guarantor under this Guarantee would have been fully released or advisable in connection with this Agreement discharged but for the provisions herein and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable so remain for such period as the Owner shall in connection herewith or therewith its absolute discretion determine (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient after having regard to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international relating to bankruptcy, liquidation, insolvency or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered undue or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(ofraudulent preference) the Borrower shall notify the Lender of the occurrence of any Event of Default immediately upon becoming aware of it.
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation release or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be)discharge. For the avoidance of doubt, upon payment by the Borrower obligations of the Default Payment, any subsequent failure(s) Guarantor under this Guarantee are and will remain in full force and effect by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, way of continuing security and the full benefit of, Owner may retain the covenants contained or implied in this Agreement in favour of Guarantee during the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereundersaid period.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
Appears in 1 contract
Samples: Performance Guarantee (Seanergy Maritime Holdings Corp.)
Covenants and Undertakings. 8.1 10.1 The Borrower covenants and undertakes, from the entry into this Agreement to and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, including the day on which the Finance Documents are terminated and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with all rights and undertakes to claims of the Lender under or in connection with the Finance Documents are duly fulfilled; that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify provide to the Lender such information in writing of all material litigation, arbitration or administrative proceedings relation to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s its business, assets or operations and financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and position as the amount of contingent liability, if such amount is ascertainableLender may reasonably require;
(jii) the Borrower shall promptly notify provide, or cause UGI Corporation to provide, the Lender in writing with copies of the audited consolidated financial statements of UGI Corporation within three ninety (390) Business Days upon becoming aware days after the end of any event or change the period for which has a material adverse effect on they have been prepared, and copies of the Borrower or unaudited quarterly consolidated financial statements of UGI Corporation within forty-five (45) days after the end of the period for which is likely to they have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operationsbeen prepared;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Default and/or Event of Default immediately upon becoming aware of it.Default;
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e(iv) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower shall take out and maintain, or ensure that any of its affiliates takes out and maintains, insurance cover over the Borrower’s assets and other appropriate insurance cover including, but not limited to insurance cover for interruption of business and general liability, of a notice type and in writing notifying an amount which is consistent with good business practice;
(v) the Borrower shall ensure that its obligations under this Agreement do and will always rank at least pari passu with its other secured and unsecured obligations, other than obligations to creditors having preference as a matter of mandatory law and other than obligations which already exist and have preference when this Agreement is concluded; as regards the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”)latter obligations, the Borrower shall be liable use reasonable best efforts to pay provide promptly that such obligations having a material adverse impact on its ability to comply with the Lender a default payment terms of [*****] (“Default Payment”) this Agreement will have no preference in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8Agreement;
(vi) the Borrower shall not create or permit to exist any collateral or security interest in favor of one or more third parties on the whole or any part of its present or future property, assets or revenues, without the prior written consent of the Lender which shall not be unreasonably withheld. The provision in the first sentence of this clause 10.1(vi) shall not apply in respect of collateral or security interest created in the ordinary course of business, provided that such collateral or security interest has no material negative impact on the Borrower’s ability to perform under this Agreement;
(vii) the Borrower shall not, without the prior written consent of the Lender which shall not be unreasonably withheld, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily, sell, transfer, lease or otherwise dispose of all or a substantial part of its property or assets. The provision in the first sentence of this clause 10.1(vii) shall not apply in respect of dispositions in the ordinary course of business, provided that such dispositions have no negative impact on the Borrower’s ability to perform under this Agreement;
(viii) other than Loan Offer page 10
(a) intercompany loans in favor of the Borrower’s subsidiaries (including, without limitation, Progas Austria) and the existing loan in the amount of EUR 11,407,482 granted by the Borrower to UGI France, Inc. (now known as UGI Europe, Inc.), and
(b) the Borrower’s undertakings set forth in that certain shareholders’ agreement regarding Zentraleuropa LPG Holding GmbH (as presented by the Borrower to the Lender prior to the entry into this Agreement) so long as the Borrower holds and controls a share of at least 50% in Zentraleuropa LPG Holding GmbH, the Borrower hereby covenants shall not make any loans or grant any credit or other financing of any kind to or for the benefit of any person or otherwise voluntarily assume any liability, whether actual or contingent, in respect of the obligations of any other person, except within the ordinary course of business, or with the prior written consent of the Lender not to be unreasonably withheld, provided always that it shallsuch loans, upon becoming aware credits, other financings or liabilities have no material negative impact on the Borrower’s ability to perform under this Agreement; and
(ix) the Borrower hereby irrevocably grants a right of first refusal for any and all of its present and future lending transactions in favor of the sameLender. It is understood that the Borrower shall have the right to solicit offers from other banks in respect of such transactions. However, immediately notify the Lender in writing thereof shall have the right to enter into any or all of such transactions, and to provide all related services, at competitive market conditions, if among the banks making offers, the Lender’s offer is at least as competitive as the best offer made among the other banks. It is understood that the Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably requirenot accept a Lender’s offer not made at competitive market conditions.
Appears in 1 contract
Samples: Guarantee Agreement
Covenants and Undertakings. 8.1 6.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower Mortgagor hereby covenants with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunderMortgagee that it will:
(a1) warrant and defend its title to and the Borrower shall make no grant security interest in the Mortgaged Securities against any and all claims (except those made pursuant to this Deed) of all persons whomsoever;
(2) procure that at all times the Mortgaged Securities are free from any restrictions on transfer except pursuant to the terms of the Transaction Agreements;
(3) punctually pay all calls or other payments due called by the Company in respect of any loan of the Mortgaged Securities;
(4) upon due exercise of the rights under this Deed, procure the registration of transfers of the Mortgaged Securities and the entry of the Mortgagee or advance its respective nominees in the Company’s register of members as the holder of the Mortgaged Securities and give all necessary assistance to the Mortgagee in arranging the registration of the transfer of the Mortgaged Securities to the Mortgagee or its respective nominees in the books of the Company and the entry of the Mortgagee or its respective nominees in the register of members of the Company as the holder of the Mortgaged Securities;
(5) other than pursuant to the terms of the Transaction Agreements, procure that the Company shall not allot or issue any shares or grant any right to acquire the same to any person, firm, body corporate persons or other business save in change its authorised capital or the ordinary course rights attaching to any of business, its shares without the prior written consent of the LenderMortgagee;
(b6) duly perform, observe and comply with all its obligations under this Deed in all respects and in accordance with all laws and regulations applicable to the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lendertransactions contemplated thereby and hereby;
(c7) the Borrower shall not issueobtain, allot maintain and comply with all consents or create any share authorisations (whether from government, authority or loan capital and will not grant any right (conditional or nototherwise) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of this Deed, and do all other things necessary to ensure the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security correctness of the Borrower without the prior consent of the Lender;
warranties contained in Clauses 5.1 (e) the Borrower shall use its best efforts to procure that CCK shall deliver7), or make available to, the Lender, a LOR on a quarterly basis, (8) and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto9); and
(iii) 8) promptly advise the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify the Lender Mortgagee in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and the amount of contingent liability, if such amount is ascertainable;
(j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Event event or any factor which may inhibit or adversely affect the Mortgagor in the performance of Default immediately upon becoming aware of itits obligations hereunder.
8.3 Any failure by CCK to furnish 6.2 The Mortgagor further covenants with the LOR in accordance with Clause 8.2(e) above by Mortgagee that until the respective due dates will constitute a violation (Date of Satisfaction, without the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower prior written consent of the occurrence of such First Violation (Mortgagee, the “First Violation Notice”) andMortgagor will not:
(a1) if Dispose of, create or permit to arise or subsist any Encumbrance over the First Violation is not remedied within fourteen Mortgaged Securities or any part thereof or the equity of redemption thereof under this Deed otherwise than pursuant to this Deed or any other Transaction Agreements; nor
(142) Business Days other than pursuant to the terms of the Transaction Agreements, declare or cause to be declared or paid to himself any dividends, or demand or accept any payment from the date Company by way of such First Violation Notice (“Continuing Violation”)distribution, return of capital or otherwise howsoever in respect of any Shares; ornor
(b3) upon permit or agree to any variation of the occurrence rights attaching to any of the Mortgaged Securities; nor
(4) participate in any vote concerning a subsequent violation (“Second Violation”)members’ liquidation, the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) dissolution or compromise in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3Company.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
Appears in 1 contract
Samples: Security Deed (Puxin LTD)
