General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that: (A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing; (B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event; (C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than: (a) indebtedness for borrowed money granted to the Borrowers under the Agreement; (b) indebtedness for borrowed money granted by another Borrower; (c) those granted to it under the Credit Agreement; (d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or (e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when: (i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or (ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets; (D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000); (E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than: (a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or (b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens; (c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or (d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; (F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks: (a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger; (b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and (c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”: (i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and (ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement; (G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations; (H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower; (I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents; (J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a); (K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreement.
Appears in 1 contract
General Covenants. EDL Hotels Each Pledgor hereby covenants and agrees as follows:
(a) Such Pledgor shall do all reasonable acts that may be necessary and appropriate to maintain, preserve and protect the Pledged Collateral; such Pledgor shall be responsible for the risk of loss of, damage to, or destruction of the Pledged Collateral owned by such Pledgor, unless such loss is the result of the gross negligence or willful misconduct of the Administrative Agent.
(b) Such Pledgor shall appear in and defend any action or proceeding of which such Pledgor is aware which could reasonably be expected to affect such Pledgor’s title to, or the Administrative Agent’s interest in, the Pledged Collateral or the proceeds thereof; provided, however, that with the consent of the Administrative Agent such Pledgor may settle such actions or proceedings with respect to the Pledged Collateral;
(c) Such Pledgor shall, and shall cause each of the Borrowers covenant Companies to, keep separate, accurate and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all complete records of the other obligations arising for said Borrower hereunder are performedPledged Collateral, that:
(A) it will use disclosing the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financingAdministrative Agent’s security interest hereunder;
(Bd) it will give notice Such Pledgor shall comply with all Laws applicable to the Lenders’ Pledged Collateral unless any noncompliance would not individually or in the aggregate materially impair the use or value of the Pledged Collateral or the Administrative Agent’s rights hereunder;
(e) Such Pledgor shall pay any and all taxes, duties, fees or imposts of any nature imposed by any Official Body on any of the Pledged Collateral, except to the extent contested in good faith by appropriate proceedings;
(f) Such Pledgor shall permit the Administrative Agent, promptly upon its officers, employees and agents to inspect, audit, and verify all books and records related to the occurrence thereofPledged Collateral, including reviewing all of any event which constitutes such Pledgor’s books and records and copying and making excerpts therefrom, provided that prior to an Event of Default or could constitute an Event of Default after a Potential Default, the same is done with reasonable advance notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state during normal business hours to the facts pertaining extent access to such eventPledgor’s premises is required;
(Cg) it will not contract Subject to Section 2(c) hereof, to the extent, following the date hereof, such Pledgor acquires capital stock, shares securities, member interests, partnership interests and other ownership interests of any indebtedness for borrowed money, without the consent of the Majority Lenders and Companies or any of the Majority Banksrights, property or securities, shares, capital stock, member interests, partnership interests or any other than:
(a) indebtedness for borrowed money granted ownership interests described in the definition of Pledged Collateral with respect to any of the Companies, such ownership interests shall be subject to the Borrowers under terms hereof and, upon such acquisition, shall be deemed to be hereby pledged to the AgreementAdministrative Agent; and, such Pledgor thereupon shall deliver all such securities, shares, capital stock, member interests, partnership interests and other ownership interests[, if any,] together with an updated Schedule A hereto, to the Administrative Agent together with all such control agreements, financing statements, and any other documents necessary to implement the provisions and purposes of this Agreement as the Administrative Agent may request;
(bh) indebtedness for borrowed money granted Except as permitted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay , during the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes term of this paragraphAgreement, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:such Pledgor shall not sell, assign, replace, retire, transfer or otherwise dispose of its Pledged Collateral;
(i) the payment Such Pledgor will not change its state of all amounts due under such indebtedness incorporation, formation or organization, as applicable, without providing thirty (including prepayment30) is, by its terms, subordinated days prior written notice to the Administrative Agent;
(j) Such Pledgor will not change its name without providing thirty (30) days prior payment of all amounts then due and payable written notice to the Lenders under the Agreement Administrative Agent;
(k) Such Pledgor shall preserve its existence as a corporation or a limited liability company, as applicable, and to the Banks under except as permitted by the Credit Agreement, and: either shall not (ai) in one, or a series of related transactions, merge into or consolidate with any other entity, the lenders making the loan corresponding to survivor of which is not such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority BanksPledgor, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on sell all or part substantially all of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(cl) in During the case term of EDL Hotels or of this Agreement, such Pledgor shall not permit any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of Company to treat any significant part of its assets; each uncertificated ownership interests as securities which are subject to Article 8 of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementCode.
Appears in 1 contract
General Covenants. EDL Hotels Kinross represents, warrants, covenants and each of agrees with the Borrowers covenant Trustee that so long as any Warrant remains outstanding and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanmay be exercised:
(a) indebtedness for borrowed money granted Kinross is duly authorized to create and issue the Borrowers under Warrants and that the AgreementWarrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against Kinross;
(b) indebtedness for borrowed money granted by another BorrowerKinross will at all times maintain its corporate existence, carry on and conduct its business in a proper and business-like manner and keep or cause to be kept proper books of account in accordance with generally accepted accounting practice;
(c) those granted Kinross will reserve for the purpose and keep available sufficient unissued Common Shares to enable it under to satisfy its obligations on the Credit Agreementexercise of the Warrants;
(d) indebtedness for borrowed money which is granted Kinross will cause the Common Shares from time to it time issued pursuant to finance and simultaneously repay the total amount exercise of the loans Warrants, and the Tranche C Advances; orcertificates representing such Common Shares, to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(e) indebtedness for borrowed money all Common Shares that are issued or created on exercise of the interest payments Warrants will be fully paid and repayment non-assessable;
(f) Kinross will cause the Trustee to keep open on business days the registers of principal holders and registers of transfers referred to in Section 3.1 and will not take any action or omit to take any action which are subordinated would have the effect of preventing the Warrantholders from exercising any of the Warrants or receiving any of the Common Shares upon such exercise;
(g) Kinross will make all requisite filings, including filings with appropriate Securities Commissions, in connection with the exercise of the Warrants and issue of the Common Shares;
(h) Xxxxxxx shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all other acts, deeds and assurances in law as the Loans and Advances; Trustee may reasonably require for the purposes better accomplishing and effecting of the provisions and intention of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:Indenture;
(i) generally, Xxxxxxx will well and truly perform and carry out all acts and things to be done by it as provided in this Indenture and will not take any action which might reasonably be expected to deprive the payment Warrantholders of all amounts due under their rights to acquire Common Shares upon the exercise of the Warrants;
(j) Kinross shall maintain its status as a reporting issuer (or the equivalent) not in default in each of the Qualifying Jurisdictions providing for such indebtedness a regime and will use its best efforts to maintain the listing of (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (ai) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders Common Shares and the Majority Banks, or (b) the repayment terms of said loan depend Warrants on the existence of available cash after servicing the Unsubordinated Indebtedness Toronto Stock Exchange and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to Common Shares on the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account American Stock Exchange or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterNew York Stock Exchange; and
(ck) in Kinross will, no later than the case earlier of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance date which is 15 days after the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) five day volume weighed average trading price of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to Common Shares on the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, Toronto Stock Exchange exceeds $4.25; and (ii) EDL Hotels has purchased or has had purchased April 30, 2003, file a shelf prospectus in the shares Provinces of Ontario and Quebec and a registration statement on Form F-10 under the Multijurisdictional Disclosure System with the U.S. Securities and Exchange Commission relating to the Common Shares issuable on the exercise of the Borrower in question at Warrants, and use its reasonable best efforts to keep the nominal value thereof and (iii) EDL Hotels has provided prospectus continuously effective for so long as shall be necessary to permit the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form exercise of the model attached as Schedule VII to Warrants (which period shall terminate no later than the Agreement evidencing that, after the completion earlier of the transaction in question, Expiry Time or the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments date on which all of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances Warrants have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(aso exercised);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreement.
Appears in 1 contract
General Covenants. EDL Hotels Each Pledgor hereby jointly and each of the Borrowers covenant severally covenants and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence agrees as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanfollows:
(a) indebtedness Such Pledgor shall do all reasonable acts that may be necessary and appropriate to maintain, preserve and protect the Pledged Collateral; such Pledgor shall be responsible for borrowed money granted the risk of loss of, damage to, or destruction of the Pledged Collateral owned by such Pledgor, unless such loss is the result of the gross negligence or willful misconduct of the Administrative Agent. If such Pledgor is not a natural person, such Pledgor shall notify the Administrative Agent in writing thirty (30) days prior to the Borrowers under the Agreementany change in such Pledgor's chief executive office address, legal name, or state of incorporation, formation or organization;
(b) indebtedness for borrowed money granted by another BorrowerSuch Pledgor shall appear in and defend any action or proceeding of which such Pledgor is aware which could reasonably be expected to affect such Pledgor's title to, or the Administrative Agent's interest in, the Pledged Collateral or the proceeds thereof; provided, however, that with the consent of the Administrative Agent such Pledgor may settle such actions or proceedings with respect to the Pledged Collateral;
(c) those granted to it under Such Pledgor shall, and shall cause each of the Credit Agreement;
Companies to, keep separate, accurate and complete records of the Pledged Collateral, disclosing the Administrative Agent's security interest hereunder; (d) indebtedness for borrowed money which is granted Such Pledgor shall comply with all Laws applicable to it to finance and simultaneously repay the total amount Pledged Collateral unless any noncompliance would not individually or in the aggregate materially impair the use or value of the loans and Pledged Collateral or the Tranche C AdvancesAdministrative Agent's rights hereunder; or
(e) indebtedness for borrowed money Such Pledgor shall pay any and all material taxes, duties, fees or imposts of any nature imposed by any Official Body on any of the interest payments and repayment of principal of which are subordinated Pledged Collateral, except to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, extent contested in good faith by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assetsappropriate proceedings;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreement.
Appears in 1 contract
General Covenants. EDL Hotels and each of The Company covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence Warrant Trustee that so long as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanWarrants remain outstanding:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreementit will maintain its corporate existence and will carry on and conduct its business in accordance with good business practice;
(b) indebtedness it will reserve and there will remain unissued out of its authorized capital a sufficient number of Subject Securities to satisfy the rights of acquisition provided for borrowed money granted by another Borrowerherein;
(c) those granted it will cause the Subject Securities from time to it under time subscribed for pursuant to the Credit AgreementWarrants in the manner herein provided and the certificates representing such Subject Securities to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(d) indebtedness for borrowed money all Subject Securities which is granted to it to finance and simultaneously repay the total amount will be issued upon exercise of the loans right to acquire provided for herein upon payment of the Warrant Exercise Price, will be issued as fully paid and non-assessable and the Tranche C Advances; orholders thereof will not be liable to the Company or its creditors in respect thereof;
(e) indebtedness for borrowed money it will use all reasonable commercial efforts to maintain the interest payments listing of the Common Shares on the TSX and repayment the Warrants on the TSX;
(f) it will use all reasonable commercial efforts to maintain its status as a “foreign private issuer” within the meaning of principal Rule 3b-4 of which are subordinated the Securities Exchange Act of 1934, as amended, of the United States of America;
(g) it will use all reasonable commercial efforts to maintain its status as a reporting issuer not in default under, and not be in default in any material respect of the Loans applicable requirements of, the applicable securities laws of each of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Xxxxxx Xxxxxx Island, Nova Scotia and AdvancesNewfoundland and Labrador, from the date hereof up to and including the Time of Expiry;
(h) it will perform all its covenants and carry out all of the acts or things to be done by it as provided in this Indenture; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:and
(i) it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all other acts, deeds and assurances in law as the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to Warrant Trustee may reasonably require for the prior payment of all amounts then due better accomplishing and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent effecting of the Majority Lenders provisions and intention of this Indenture. The Company and the Majority Banks, or Warrant Trustee acknowledge and agree that (bi) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date none of the principal foregoing covenants will be interpreted or applied so as to prohibit or restrict or otherwise limit the Company’s ability, right and authority to undertake or implement one or more of said loan is subsequent to the Final Maturity Dateactions contemplated by sections 2.12 or 7.2; or
and (ii) the payment foregoing covenants will be interpreted and applied following each of all amounts then due in connection such actions with said indebtedness (including prepayment) is, by its terms, subordinated reference to any successor to the prior payment of all amounts then due Company and payable with reference to any securities into which the Lenders under Common Shares and/or the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case Warrants may be (with the exception of those amounts set forth in subparagraph (d) above) and changed or for which they may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision exercisable as a result of the normal activity of EDL Hotels such action or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementactions.
Appears in 1 contract
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted The Corporation covenants that it is duly authorized to create and issue the Warrants to be issued hereunder and that the Warrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against the Corporation, and that, subject to the Borrowers under provisions of this Indenture, the Agreement;Corporation will cause the Common Shares from time to time subscribed for and purchased pursuant to this Indenture, and the certificates representing the Common Shares, to be duly issued. At all times until the Expiry Date while any of the Warrants are outstanding, the Corporation shall reserve and there shall remain unissued out of its authorized capital a number of Common Shares sufficient to satisfy the exercise of all Warrants then outstanding. All Common Shares issued upon the exercise of the Warrants shall be fully-paid and non-assessable.
(b) indebtedness The Corporation will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as counsel may reasonably require for borrowed money granted by another Borrower;the better accomplishing and effecting of the intentions and provisions of this Indenture.
(c) those granted Subject to the provisions hereof, the Corporation will carry on and conduct and will cause to be carried on and conducted its business in a proper and efficient manner and will cause to be kept proper books of account in accordance with generally accepted accounting practice, provided that the Corporation or any subsidiary of the Corporation may cease to operate or may dispose of any business, premises, property or operation if in the opinion of the directors or officers of the Corporation it under would be advisable and in the Credit Agreement;best interests of the Corporation to do so. Subject to the provisions hereof, the Corporation will do or cause to be done, all things necessary to preserve and keep in full force and effect its corporate existence, provided that nothing herein contained shall prevent the amalgamation, consolidation, merger, sale, winding up or liquidation of the Corporation or any subsidiary of the Corporation or the abandonment of any rights and franchises of the Corporation or any subsidiary of the Corporation if in the opinion of the directors or officers of the Corporation, it would be advisable and in the best interest of the Corporation or of such subsidiary of the Corporation to do so.
(d) indebtedness The Corporation shall take all such steps and actions to do all such things that may reasonably be necessary to maintain the listing and posting for borrowed money which is granted to it to finance and simultaneously repay the total amount trading of the loans Common Shares and the Tranche C Advances; orWarrants on the TSX and to maintain its status as a "reporting issuer", or the equivalent thereof, not in default of the requirements of the securities acts and regulations thereunder of each of the provinces of Canada in which it currently is a reporting issuer.
(e) indebtedness for borrowed money The Corporation will use reasonable efforts to ensure that the interest payments and repayment Common Shares issuable upon the exercise of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money Warrants will be considered subordinated to listed and posted for trading on the Loans and Advances when:TSX upon their issue.
(if) If the payment Corporation shall fail to perform any of all amounts due under its covenants contained in this Indenture, the Warrant Agent may notify the Warrant Holders of such indebtedness (including prepayment) is, by its terms, subordinated to failure on the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent part of the Majority Lenders and the Majority Banks, Corporation or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date may itself perform any of the principal said covenants capable of said loan is subsequent being performed by it, but the Warrant Agent shall be under no obligation to do so or to notify the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed Warrant Holders. All sums expended or advanced by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth Warrant Agent in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part performance of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest rights provided for in Article 5.2 (B)(2this subsection 5.1(f) of the Agreement)shall be repayable as provided in Section 5.2. Any No such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans andperformance, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans expenditure or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed advance by the Expert, substantially in Warrant Agent shall be deemed to relieve the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance Corporation of any commitment whatsoever, other than as provided herein default hereunder or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementits continuing obligations hereunder.
Appears in 1 contract
Samples: Warrant Indenture (Emc Metals Corp.)
General Covenants. EDL Hotels and each of The Corporation covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence Warrant Agent that so long as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanWarrants remain outstanding:
(a) indebtedness it will reserve and keep available a sufficient number of Common Shares for borrowed money granted the purpose of enabling it to satisfy its obligations to issue Warrant Shares upon the Borrowers under exercise of the AgreementWarrants;
(b) indebtedness for borrowed money granted by another Borrowerit will cause the Warrant Shares from time to time acquired pursuant to the exercise of the Warrants to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(c) those granted upon payment of the aggregate Exercise Price therefor, all Warrant Shares which shall be issued upon exercise of the right to it under the Credit Agreementacquire provided for herein shall be fully paid and non-assessable, free and clear of all encumbrances;
(d) indebtedness for borrowed money which is granted it will use reasonable commercial efforts to it to finance maintain its existence and simultaneously repay carry on its business in the total amount of the loans and the Tranche C Advances; orordinary course;
(e) indebtedness for borrowed money the interest payments generally, it will well and repayment of principal of which are subordinated to the Loans truly perform and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of carry out all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, acts or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due things to be done by it as provided in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB AssetsIndenture;
(Df) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect both (A) the Receipt is obtained and (B) the Registration Statement has been declared effective by the SEC, it will give written notice to equipment necessary for the construction or operation Warrant Agent and the Agents of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) issuance of the Agreement Receipt and Article 17 (Guarantee – Security Interests) filing of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of Registration Statement and specifying the normal activity of EDL Hotels or Qualification Date Expiry, not later than two Business Day after the issuance of such Borrower, provided that such liens do not result from the failure of EDL Hotels or Receipt and filing of such Borrower to comply with its obligations, that a request for Registration Statement; and the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant Company will provide written confirmation to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assetsWarrant Agent, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders Agents and the Banks as set forth in Article 17 (Guarantee – Security Interests) Warrantholders of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided adjustment that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterhas been made; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (ig) the Borrowers’ Loans and Advances used to finance Corporation will promptly notify the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Warrant Agent and the Financial Agent a certificate reviewed by the Expert, substantially Warrantholders in the form writing of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment any default under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes terms of this paragraph, the Warrant Indenture which remains unrectified for more than five days following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementoccurrence.
Appears in 1 contract
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders The Corporation and the Majority BanksResulting Issuer, other thanas applicable, covenant with the Warrant Agent and the Warrantholders that so long as any Warrants or Resulting Issuer Warrants remain outstanding:
(a) indebtedness it will reserve and keep available a sufficient number of Common Shares for borrowed money granted the purpose of enabling it to satisfy its obligations to issue Warrant Shares upon the Borrowers under exercise of the AgreementWarrants;
(b) indebtedness the Corporation will cause the Resulting Issuer to reserve and keep available a sufficient number of Resulting Issuer Shares for borrowed money granted by another Borrowerissuance upon exercise of the Resulting Issuer Warrants;
(c) those granted it will cause the Warrant Shares from time to it under time acquired pursuant to the Credit Agreementexercise of the Warrants to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(d) indebtedness for borrowed money all Warrant Shares which is granted to it to finance and simultaneously repay the total amount shall be issued upon exercise of the loans right to acquire provided for herein shall be fully paid and the Tranche C Advances; ornon-assessable, free and clear of all encumbrances;
(e) indebtedness it will use commercially reasonable efforts to maintain its existence and carry on its business in the ordinary course; provided that this clause shall not be construed as limiting or restricting the Corporation from agreeing to a consolidation, amalgamation, arrangement, takeover bid or merger even if the consideration being offered are not securities that are listed and posted for borrowed money trading on a recognized Canadian stock exchange, provided that such transaction has been approved in accordance with the interest payments requirements of applicable corporate and repayment securities laws and the rules and policies of principal of which are subordinated the applicable stock exchange;
(f) it will use its commercially reasonable efforts to give effect to the Loans Business Combination as soon as reasonable practicable, in any event prior to the Release Date;
(g) generally, it will well and Advances; for truly perform and carry out all of the purposes acts or things to be done by it as provided in this Indenture;
(h) the Corporation will promptly notify the Warrant Agent and the Warrantholders in writing of any default under the terms of this paragraph, indebtedness Warrant Indenture which remains unrectified for borrowed money will be considered subordinated to the Loans and Advances when:more than ten (10) days following its occurrence;
(i) the payment of it will use commercially reasonable efforts to ensure that all amounts due Resulting Issuer Warrant Shares and all Resulting Issuer Warrants issued under such indebtedness this Indenture that are outstanding or issuable from time to time (including prepaymentwithout limitation the Resulting Issuer Warrant Shares issuable on the exercise of the Resulting Issuer Warrants) is, by its terms, subordinated continue to be or are listed and posted for trading on the CSE (or such other recognized Canadian stock exchange acceptable to the prior payment of all amounts then due Corporation), provided that this clause shall not be construed as limiting or restricting the Resulting Issuer from completing a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Resulting Issuer Shares ceasing to be listed and payable to posted for trading on such exchanges, so long as the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent holders of the Majority Lenders Resulting Issuer Shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence policies of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account exchanges or the SNC Loan Account, as the case may be (with the exception holders of those amounts set forth Resulting Issuer Shares receive securities of an entity which is listed on a stock exchange in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) Canada or to finance the construction and operation of the Phase IB Assetscash;
(Dj) it will make all requisite filings under and otherwise take all requisite steps under and satisfy applicable Canadian securities legislation including those filings and other steps necessary to remain a reporting issuer not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation default in each of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) provinces and other Canadian jurisdictions where it will not grant nor suffer to exist any lien on all is or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from becomes a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterreporting issuer; and
(ck) it will use reasonable commercial efforts to remain a reporting issuer not in the case of EDL Hotels or of any Borrower, participating default in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) provinces and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement other Canadian jurisdictions where it is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementa reporting issuer.
Appears in 1 contract
Samples: Warrant Indenture
General Covenants. EDL Hotels and each The Corporation covenants with the Warrant Agent, for the benefit of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Warrant Agent and the Financial Agent a certificate of EDL Hotels reviewed by Warrantholders, that so long as any Warrant remains outstanding:
5.2.1 the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio Warrants, when issued and the Unsubordinated Indebtedness Annual Debt Coverage Ratiocountersigned as herein provided, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into valid and enforceable against the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence Corporation and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; andprovisions of this Indenture;
(c) 5.2.2 it will reserve and keep available a sufficient number of Warrant Shares for the purpose of enabling it to satisfy its obligations to issue Warrant Shares upon the exercise of the Warrants;
5.2.3 it will cause the Warrant Shares from time to time acquired pursuant to the exercise of the Warrants to be duly issued and delivered in accordance with the case Warrants and the terms hereof;
5.2.4 all Warrant Shares which shall be issued upon exercise of EDL Hotels or the right to acquire provided for herein shall be fully paid and non-assessable, free and clear of any Borrower, participating all encumbrances;
5.2.5 it will use commercial best efforts to keep in full force and effect its corporate existence and conduct its business in a partial asset contributionprudent manner in accordance with industry standards and good business practice and will keep or cause to be kept proper books of account in accordance with generally accepted accounting practice;
5.2.6 it will use commercial best efforts to ensure that all Common Shares outstanding or issuable from time to time (including without limitation the Warrant Shares issuable on the exercise of the Warrants) continue to be or are listed and posted for trading on the TSX (or such other Canadian stock exchange acceptable to the Corporation), and to take all such reasonable steps and actions to do all such reasonable things that may be required to maintain its status as a “reporting issuer” not in default of the requirements of Securities Laws where it is or sellingmay, rentingfrom time to time, be a reporting issuer, provided that this clause shall not be construed as limiting or otherwise disposing of any significant part of its assets; restricting the Corporation to agree to a consolidation, amalgamation, arrangement, takeover bid or merger even if the consideration being offered are not securities that are so listed and posted for trading;
5.2.7 it will make all requisite filings, registrations and notices, including those required to be made under applicable Securities Laws, and those necessary to remain a reporting issuer not in default in each of the transactions described in subparagraphs (b) provinces and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banksother jurisdictions where it is, and under normal commercial conditionsor becomes, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent reporting issuer and the Financial Agent a certificate reviewed by the ExpertCorporation shall pay all corresponding fees, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation exercise of the Phase IB InstallationsWarrants;
(H) 5.2.8 it will cause the Warrant Agent to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating keep open the set-off Warrant register and will not take any action or omit to take any action which would have the effect of amounts due to it for a cumulative amount in excess of five per cent (5%) preventing the Warrantholders from exercising any of the net assets Warrants or receiving any of EDL Hotels or of the Warrant Shares upon such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrowerexercise;
(I) 5.2.9 it will provide to the Warrant Agent in a timely manner all such information and documents as the Warrant Agent may reasonably request are within the knowledge or control of the Corporation in order to verify the factual circumstances relating to such notices or acts and, if requested, such information and documents shall be certified as correct by an officer of the Corporation;
5.2.10 it will promptly advise the Warrant Agent and the Warrantholders in writing of any default under the terms of this Indenture;
5.2.11 it will not pay or give any commission or other remuneration to enter into any agreement pursuant person, directly or indirectly, for soliciting the exercise of the Warrants;
5.2.12 it will do, execute, acknowledge and deliver or cause to which it be done, executed, acknowledged and delivered, all other acts deeds and assurances as guarantor or co-debtor, or becomes responsible the Warrant Agent may reasonably require for the performance better accomplishing and effecting of any commitment whatsoeverthe intentions and provisions of this Indenture; and
5.2.13 generally, other than it will well and truly perform all its covenants and carry out all of the acts or things to be done by it as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementthis Indenture.
Appears in 1 contract
Samples: Warrant Indenture
General Covenants. EDL Hotels Lessee covenants to Lessor and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) Owner Participant that it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanwill:
(a) indebtedness for borrowed money granted preserve and maintain (i) subject to clause (e) below, its corporate existence and (ii) all of its rights, privileges and franchises in every jurisdiction in which the Borrowers under character of the Agreementproperty owned or the nature of the business transacted by it makes licensing or qualification necessary;
(b) indebtedness for borrowed money granted pay or cause to be paid (i) all Taxes required by another Borrowerapplicable Laws to be paid by it (whether such Taxes are imposed upon it or upon its income and profits or upon any property belonging to it or otherwise) prior to the date on which any penalty accrues, except Taxes which it is contesting in good faith by appropriate proceedings provided that such contest does not involve any risk of criminal penalty or any reasonable possibility of sale, forfeiture, confiscation, seizure or loss of, or the imposition of any Lien on, any Item of Equipment or any interest therein, and (ii) all other lawful claims which, if not paid, are reasonably likely to result in the imposition of a Lien upon the Aircraft or any part thereof;
(c) those granted remain duly qualified to it operate the Aircraft under the Credit Agreementapplicable Law;
(d) indebtedness maintain in full force and effect all governmental consents, licenses, authorizations, approvals, declarations, filings and registrations obtained or effected in connection with this Agreement and every document or instrument contemplated hereby and to take all such additional action as may be necessary in connection herewith or therewith. Lessee further undertakes to timely obtain or effect any new or additional governmental consents, licenses, authorizations, approvals, declarations, filings or registrations as may become necessary [**] — Confidential treatment has been requested for borrowed money which is granted to it to finance the bracketed portions. The confidential redacted portion has been omitted and simultaneously repay filed separately with the total amount Securities and Exchange Commission. for Lessee’s performance of its obligations hereunder and under each of the loans and the Tranche C Advances; orother Operative Documents to which Lessee is a party;
(e) indebtedness for borrowed money not enter into any transaction (a “Transaction”) without the interest payments prior written consent of Lessor (whether by way of reconstruction, reorganization, consolidation, amalgamation, merger, transfer, sale, lease or otherwise) whereby all or substantially all of its liabilities, property and repayment assets would become the liabilities, property and assets of principal of which are subordinated to the Loans and Advances; for entity resulting therefrom (the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when“Successor”) unless:
(i) no Lease Event of Default has occurred and is continuing or would result from the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; orTransaction;
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders Successor is a corporation or a limited liability company existing under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation laws of the Phase IB AssetsU.S. or one of its states;
(Diii) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000)Successor is a Certificated Air Carrier;
(Eiv) it will the tangible net worth of the Successor is not grant nor suffer less than that of Lessee immediately prior to exist any lien on all or part of its assets or revenues other than:the Transaction; and
(av) liens described in Article 17 (Guarantee – Security Interests) the Successor becomes liable for the obligations of Lessee under the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from Operative Documents to which Lessee is a judicial decision party as a result of the normal activity Transaction. Any breach by Lessee of EDL Hotels this Section 8.1(e) shall be deemed a “Change of Control Event.”
(f) notify Lessor and Owner Participant of any change to Lessee’s registered office for service of process or any change in Lessee’s jurisdiction of incorporation not more than 30 days following such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such lienschange;
(cg) liens granted pursuant not (i) except as otherwise permitted in this Agreement, voluntarily suspend its certificated operation of the Aircraft or its fleet of Airbus A330’s or (ii) permit to be revoked, canceled or otherwise terminated, whether by act or omission, all or substantially all of the normal activity franchises, concessions, permits, rights or privileges required for the conduct of EDL Hotels or business and operations of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ Lessee or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, free and (2) all the liens referred to in subparagraphs (c) continued use and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreementexercise thereof;
(Fh) to take pay promptly when due all necessary steps to maintain its legal existence andnavigation and en-route charges and all other charges payable by Lessee for the use of or services provided at any airport, without limiting the foregoing, to refrain from the following, unless with the prior consent whether in respect of the Majority Lenders and the Majority Banks:
(a) filing a request Aircraft or demand or adopting a resolution to dissolve or, any other aircraft in a BorrowerLessee’s case, to participate in a mergerfleet;
(bi) in the case of EDL Hotelsnot represent or hold out Lessor, merging with Owner Participant, any entity, except in the framework Financier or any Affiliate of the construction foregoing as carrying goods or passengers on the Aircraft or being in any way connected to operation of the Phase IB Installations Aircraft;
(j) If any Items of Equipment delivered to Lessor by Lessee in connection with this Agreement are required by this Agreement to have a validity and provided effectiveness for the Lease Term, but have or are of a duration or effectiveness that EDL Hotels will is for less than the Lease Term [**] — Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. when originally delivered, cause replacements, extensions or supplements thereof to be timely delivered to Lessor during the surviving entity after Lease Term to ensure that Lessor maintains at all times during the Lease Term the benefits initially afforded by such mergeritems and the continued effectiveness and validity of the same for the Lease Term;
(k) not, subject directly or indirectly, create, incur, assume or suffer to exist any Lien on or with respect to this Lease, any Item of Equipment, title thereto or any interest therein, except for Permitted Liens. Lessee shall promptly, at its own expense, take such action as may be necessary to duly discharge any such Lien not excepted above if the conditions set forth hereinaftersame shall arise at any time with respect to any Item of Equipment; and
(cl) ensure that if the Aircraft is in the case of EDL Hotels or of any Borrower, participating effect used and enjoyed in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans Ireland and, if necessaryat such time the Aircraft is not used by a transport undertaking operating for reward chiefly on international routes, then Lessee shall promptly notify Lessor in order writing and shall reasonably cooperate (at Owner Participant’s cost) to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal prepare and file such Irish value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached added Tax forms as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will may be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) reasonably required to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of Irish value added Tax does not apply to Rent, Supplemental Rent, Agreed Value, and other amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common paid by Lessee under this Agreement.
Appears in 1 contract
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanThe Obligor shall:
(a) indebtedness for borrowed money granted furnish to the Borrowers under Trustee from time to time at its request written statements and schedules further identifying and describing the AgreementPledged Collateral in such detail as the Trustee may reasonably require;
(b) indebtedness for borrowed money granted by another Borroweradvise the Trustee promptly, in sufficient detail, of any substantial change in the Pledged Collateral, and of the occurrence of any event which would have a material adverse affect on the value of the Pledged Collateral or on the Trustee’s security interest therein;
(c) those granted comply with all Legal Requirements applicable to it under the Credit AgreementPledged Collateral or any part thereof or to the operation of the Obligor’s business, provided that the Obligor may contest any acts, rules, regulations, orders and directions of such bodies or officials in any reasonable manner which will not, in the Obligor’s opinion, adversely affect its rights or the priority of its security interest in the Pledged Collateral;
(d) indebtedness for borrowed money which is granted promptly execute and deliver to it the Trustee such further deeds, mortgages, assignments, security agreements and other instruments, documents, certificates and assurances and take such further action as may from time to finance time be necessary to perfect, protect or enforce its security interest in the Pledged Collateral or otherwise to effectuate the intent of this Pledge and simultaneously repay the total amount of the loans and the Tranche C Advances; orSecurity Agreement;
(e) indebtedness for borrowed money maintain the interest payments Pledged Collateral in good operating condition and repayment of principal of which are subordinated repair, subject to ordinary wear and tear;
(f) deliver to the Loans Trustee promptly upon its request all certificates, schedules, lists, invoices, bills of lading, documents of title, original purchase orders, receipts, chattel paper, instruments or other items relating to any of the Pledged Collateral;
(g) make, stamp or record such entries or legends on any of the Obligor’s books and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated records relating to the Loans Pledged Collateral, including without limitation, notation of the security interest of the Trustee on any certificates of title or other evidence of ownership outstanding with respect thereto;
(h) defend the Pledged Collateral at its own expense against any and Advances when:all claims or demands of third parties at any time claiming an interest in any of the Pledged Collateral;
(i) promptly notify the payment Trustee of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing any claims, liens, security interests, rights or other encumbrances which may be or become adverse to the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date interest of the principal Trustee in any of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due Pledged Collateral and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed which are not permitted by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB AssetsSecurity Documents;
(Dj) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely notify the Trustee in the event that EDL Hotels concludes such agreements of a material loss or damage to the Pledged Collateral or of any material adverse change in the Obligor’s financial condition, business affairs or with respect to equipment necessary for the construction or operation any of the Phase IB InstallationsPledged Collateral, for an annual aggregate pre-tax rental amount not in excess or of one million five hundred thousand euros (€1,500,000)any other occurrence which may materially adversely affect the security interest of the Trustee therein;
(Ek) it will not grant nor suffer pay all expenses incurred with respect to exist any lien on all the purchase, delivery, use, repair or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) handling of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assetsPledged Collateral, as such net assets appear in EDL Hotels’ well as all taxes which will or may become a Lien on the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoingPledged Collateral, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterpromptly when due; and
(cl) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) execute and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata deliver to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans andTrustee such other and further documents, if necessary, instruments or writings which may be necessary in order to comply with effectuate or protect the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially Trustee’s security interest in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementPledged Collateral.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
General Covenants. EDL Hotels Each Pledgor hereby covenants and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence agrees as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanfollows:
(a) indebtedness Such Pledgor shall do all reasonable acts that may be necessary and appropriate to maintain, preserve and protect the Pledged Collateral, such Pledgor shall be responsible for borrowed money granted to the Borrowers under risk of loss of, damage to, or destruction of the AgreementPledged Collateral owned by such Pledgor, unless such loss is the result of the gross negligence or willful misconduct of the Secured Party;
(b) indebtedness for borrowed money granted by another BorrowerSuch Pledgor shall appear in and defend any action or proceeding of which such Pledgor is aware which could reasonably be expected to affect such Pledgor’s title to, or the Secured Party’s interest in, the Pledged Collateral or the proceeds thereof; provided, however, that with the prior written consent of the Secured Party, which shall not be unreasonably withheld or delayed, such Pledgor may settle such actions or proceedings with respect to the Pledged Collateral;
(c) those granted to it under Such Pledgor shall, and shall cause each other Pledgor to, keep separate, accurate and complete records of the Credit AgreementPledged Collateral, disclosing the Secured Party’s security interest hereunder;
(d) indebtedness for borrowed money which is granted Such Pledgor shall comply with all material Governmental Rules applicable to it to finance and simultaneously repay the total amount Pledged Collateral unless any noncompliance would not individually or in the aggregate materially impair the use or value of the loans and Pledged Collateral or the Tranche C Advances; orSecured Party’s rights hereunder;
(e) indebtedness for borrowed money Such Pledgor shall pay any and all taxes, duties, fees or imposts of any nature imposed by any Governmental Authority on any of the interest payments Pledged Collateral, except to the extent contested in good faith by appropriate proceedings;
(f) Such Pledgor shall permit the Secured Party, its officers, employees and repayment agents, on reasonable prior notice prior to the existence of an Event of Default (or in the absence of prior notice following and during the continuation of an Event of Default), to inspect all books and records related to the Pledged Collateral;
(g) Except as permitted by the Note Purchase Agreements, during the term of this Agreement, such Pledgor shall not sell, assign, replace, retire, transfer or otherwise dispose of such Pledgor’s Pledged Collateral;
(h) Such Pledgor will not change its state of principal of which are subordinated residence without providing thirty (30) days prior written notice to the Loans and AdvancesSecured Party; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:and
(i) the payment of all amounts due under such indebtedness Such Pledgor will not change its name without providing thirty (including prepayment30) is, by its terms, subordinated days prior written notice to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementSecured Party.
Appears in 1 contract
Samples: Pledge Agreement (Gas Natural Inc.)
General Covenants. EDL Hotels and each of The Corporation covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders Subscription Receipt Agent and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances whenAgent that so long as any Subscription Receipts remain outstanding:
(i) the payment of it shall at all amounts due under such indebtedness (including prepayment) is, by times maintain its terms, subordinated to the prior payment of all amounts then due existence and payable to the Lenders under the Agreement will carry on and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cashconduct its business, and the repayment date that of the principal its subsidiaries, in a prudent manner in accordance with industry standards and good business practice and will keep or cause to be kept proper books of said loan is subsequent to the Final Maturity Date; oraccount in accordance with applicable law and generally accepted accounting principles;
(ii) except as contemplated in the payment Agency Agreement or the Offering Memorandum, it shall not take any action which would result in, or cause any change to, the share capital or capital structure of the Corporation including, but not limited to, a Common Share Reorganization or a Capital Reorganization, or enter into any agreement to do any of the foregoing;
(iii) it will perform and carry out all amounts then due of the acts or things to be done by it as provided in connection with said indebtedness this Agreement;
(including prepaymentiv) is, by its terms, subordinated prior to the prior payment earlier of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, Escrow Release Time and the Borrowers deliver Termination Date, it will not sell the properties or assets of the Corporation as, or substantially as, an entirety, to any other entity; The Corporation covenants with the Lenders’ Subscription Receipt Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio so long as any Subscription Receipts remain outstanding:
(i) it will reserve and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used conditionally allot for the repayment set forth in subparagraph (d) or purpose and keep available sufficient unissued Common Shares to finance enable it to satisfy its obligations on the construction and operation conversion of the Phase IB AssetsSubscription Receipts;
(Dii) it will cause the Underlying Securities to be duly issued pursuant to the conversion of the Subscription Receipts and the certificates representing such Common Shares, Warrants and Flow Through Shares to be issued and delivered in accordance with the provisions of this Agreement and the terms hereof and all Underlying Securities that are issued on the conversion of the Subscription Receipts will be fully paid and non-assessable securities;
(iii) the Corporation confirms that as at the date hereof it does not contract any agreement as tenant under any lease agreement have a class of securities registered pursuant to Section 12 of the Exchange Act or financial lease whatsoever, except solely a reporting obligation pursuant to Section 15(d) of the Exchange Act. The Corporation covenants that in the event that EDL Hotels concludes (i) any class of its securities shall become registered pursuant to Section 12 of the Exchange Act, (ii) the Corporation shall incur a reporting obligation pursuant to Section 15(d) of the Exchange Act, or (iii) any such agreements registration or reporting obligation shall be terminated by the Corporation in accordance with the Exchange Act, the Corporation shall promptly deliver to the Subscription Receipt Agent an officers' certificate (in a form provided by the Subscription Receipt Agent) notifying the Subscription Receipt Agent of such registration or termination and such other information as the Subscription Receipt Agent may reasonably require at the time. The Corporation acknowledges that the Subscription Receipt Agent is relying upon the foregoing representation and covenants in order to meet certain obligations of the Subscription Receipt Agent with respect to equipment necessary for the construction or operation those clients of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000)Subscription Receipt Agent that are required to file reports with the United States Securities and Exchange Commission under the Exchange Act;
(Eiv) it will cause the Subscription Receipt Agent to keep open the registers of Receiptholders referred to in Section 3.1 hereof as required by such section and will not grant nor suffer take any action or omit to exist take any lien on all or part action which would have the effect of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) preventing the Subscription Receiptholders from receiving any Underlying Securities issued upon conversion of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liensSubscription Receipts;
(cv) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assetsit will make all requisite filings, including any required filings with appropriate securities commissions and stock exchanges, as such net assets appear applicable, in EDL Hotels’ or connection with the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that conversion of the Lenders under Subscription Receipts and the Agreement or to that issue of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit AgreementUnderlying Securities;
(Fvi) it shall provide at least fourteen Business Days written notice to take all necessary steps each Receiptholder of any record date to maintain its legal existence and, without limiting be set or declared by the foregoing, Corporation with respect to refrain from the following, unless with the prior consent any meeting or written resolution of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a mergerholders of Common Shares;
(bvii) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided event that (i) the Borrowers’ Loans and Advances used to finance Corporation delivers the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans andTermination Notice, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels if the Escrow Release Notice has purchased or has had purchased the shares of the Borrower not been provided in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection accordance with the construction provisions hereof on or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the CovenantsEscrow Release Deadline, it being noted will promptly advise the Subscription Receipt Agent, the Receiptholders and the Agent in writing advising of that the authorizations or waivers fact and each Receiptholder shall receive that must be granted amount equal to the Borrowers pursuant to original Subscription Price therefor plus the said paragraphs will Receiptholder's pro rata share of Subscription Receipt interest, if any, on such amount (less any applicable withholding tax thereon) of any default under the terms of this Agreement and such notice shall be granted in accordance with provisions of article 3 of the Common Agreement.sent within three
Appears in 1 contract
Samples: Subscription Receipt Agreement
General Covenants. EDL Hotels and each of The Corporation covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence Warrant Agent that so long as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanWarrants remain outstanding:
(a) indebtedness for borrowed money granted the Warrants, when issued and countersigned as provided in this Indenture, will be valid and enforceable against it in accordance with and subject to the Borrowers under the Agreementprovisions of this Indenture;
(b) indebtedness it will reserve and keep available a sufficient number of Common Shares for borrowed money granted by another Borrowerthe purpose of enabling it to satisfy its obligations to issue Common Shares upon the exercise of the Warrants;
(c) those granted it will cause the Common Shares and the certificates representing the Common Shares from time to it under time acquired pursuant to the Credit Agreementexercise of the Warrants to be duly issued and delivered in accordance with the Warrant Certificates and the terms hereof;
(d) indebtedness for borrowed money all Common Shares which is granted to it to finance and simultaneously repay the total amount shall be issued upon exercise of the loans right to acquire provided for herein and in the Tranche C Advances; orWarrant Certificates shall be fully paid and non-assessable;
(e) indebtedness for borrowed money the interest payments Corporation will do, or cause to be done, all things necessary to preserve and repayment keep in full force and effect its corporate existence, provided however that (subject to Article 4 and Section 8.2) nothing will prevent the amalgamation, consolidation, merger or sale of, or other business combination involving the Corporation;
(f) it will undertake to use commercially reasonable efforts, immediately following the expiration of principal the hold period set out in National Instrument 45-102 – Resale of which are subordinated Securities, to list the Warrants, including any Warrants issuable to the Loans and Advances; for Agents as part of the purposes of this paragraphCorporate Finance Fee Units or the Agents Units, indebtedness for borrowed money will be considered subordinated on the CSE, subject to the Loans Company meeting the requisite listing requirements for such Warrants;
(g) it will perform and Advances when:carry out all of the acts or things to be done by it as provided in this Indenture;
(h) it will not close its transfer registers or take any other action which might deprive the Warrantholders of the opportunity of exercising their right of purchase pursuant to the Warrants held by such persons during the period of 14 days after giving of the notice required by Section 4.8;
(i) the payment Corporation will promptly notify the Warrant Agent and the Warrantholders in writing of all amounts due any material default under such indebtedness the terms of this Warrant Indenture which remains unrectified for more than thirty days following its occurrence;
(including prepaymentj) is, by its terms, subordinated the Corporation will give to the prior payment of all amounts then due and payable to Warrantholders, in the Lenders under the Agreement manner provided in Subsection 4.8 hereof, and to the Banks under the Credit AgreementWarrant Agent, and: either (a) the lenders making the loan corresponding notice of its intention to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banksfix a record date, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Accounteffective date, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installationsbe, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens event referred to in subparagraphs (c) and (d) above, affecting Section 4.8 hereof which may give rise to an asset adjustment in the Exercise Price or a right which is in the subject matter number of one Common Shares purchasable upon exercise of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterWarrants; and
(ck) that it will execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of Warrant Agent may reasonably require for the transactions described in subparagraphs (b) better accomplishing and (c) hereinabove may nevertheless occur without effecting the prior consent of the Majority Lenders intentions and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes provisions of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementIndenture.
Appears in 1 contract
Samples: Warrant Indenture
General Covenants. EDL Hotels The Company represents, warrants and each covenants with the Warrant Agent for the benefit of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, Warrantholders that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted it will at all times maintain its existence, carry on and conduct its business in a proper, efficient and business-like manner and in accordance with good business practice, keep or cause to be kept proper books of account in accordance with generally accepted accounting practice and, if and whenever required in writing by the Borrowers under Warrant Agent, file with the AgreementWarrant Agent copies of all annual statements of the Company furnished to its shareholders during the term of this Indenture;
(b) indebtedness for borrowed money granted by another Borrowerit is duly authorized to create and issue the Warrants to be issued hereunder and the Warrant Certificates when issued and certified as herein provided will be legal, valid and binding obligations of the Company;
(c) those granted subject to the provisions of this Indenture, it under will cause the Credit AgreementShares from time to time subscribed for and purchased pursuant to the exercise of Warrants and the certificates representing such Shares to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(d) indebtedness for borrowed money which is granted at all times while any Warrants are outstanding it shall reserve and there shall remain unissued and conditionally allotted out of its authorized capital a number of Shares sufficient to it enable the Company to finance and simultaneously repay meet its obligations to issue Shares on the total amount exercise of the loans and the Tranche C Advances; orWarrants outstanding hereunder from time to time;
(e) indebtedness upon the exercise by the holder of any Warrant of the right of purchase provided for borrowed money therein and herein and upon payment of the interest payments and repayment of principal Exercise Price applicable thereto for each Share in respect of which are subordinated to the Loans right of purchase is so exercised, all Shares issuable upon the exercise shall be validly issued, fully paid and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assetsnon-assessable;
(Df) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in use its reasonable commercial efforts to ensure that the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation Shares issuable upon exercise of the Phase IB Installations, Warrants will be listed for an annual aggregate pre-tax rental amount trading on the Exchange and any other stock exchange on which the Shares are then listed and posted for trading upon their issue for a period of not in excess less than two years from the Date of one million five hundred thousand euros (€1,500,000)Issue;
(Eg) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) the issue of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do Warrants does not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete result in a breach by the Company of, and does not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach by the Company of any applicable laws, and does not and will not conflict with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) any of the Agreement and Article 17 (Guarantee – Security Interests) terms, conditions or provisions of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent memorandum of the Majority Lenders and Company or the Majority Banks:
(a) filing a request articles or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework resolutions of the construction Company or operation any trust indenture, loan agreement or any other agreement or instrument to which the Company is a party or by which it is contractually bound on the date of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterthis Indenture; and
(ch) it shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all other acts, deeds and assurances in law as the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of Warrant Agent may reasonably require for better accomplishing and effecting the transactions described in subparagraphs (b) intentions and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes provisions of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementIndenture.
Appears in 1 contract
Samples: Share Purchase Warrant Indenture (Infowave Software Inc)
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to The Corporation covenants with the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans Subscription Receipt Agent and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances whenJoint Bookrunners that so long as any Subscription Receipts remain outstanding:
(i) the payment of it shall at all amounts due under such indebtedness (including prepayment) is, by times maintain its terms, subordinated to the prior payment of all amounts then due existence and payable to the Lenders under the Agreement will carry on and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cashconduct its business, and the repayment date that of the principal its subsidiaries, in a prudent manner in accordance with industry standards and good business practice and will keep or cause to be kept proper books of said loan is subsequent to the Final Maturity Date; oraccount in accordance with applicable law and generally accepted accounting principles;
(ii) except as contemplated in the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agency Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage RatioBusiness Combination Agreement, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan AccountAmalgamation Agreement, as it shall not take any action which would result in, or cause any change to, the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) share capital or to finance the construction and operation capital structure of the Phase IB AssetsCorporation including, but not limited to, a Common Share Reorganization or a Capital Reorganization, or enter into any agreement to do any of the foregoing;
(Diii) it will perform and carry out all acts or things to be done by it as provided in this Agreement;
(iv) prior to the earlier of the Escrow Release Time and the Termination Date, it will not contract sell the properties or assets of the Corporation as, or substantially as, an entirety, to any agreement other entity;
(v) will reserve and conditionally allot for the purpose and keep available sufficient unissued Common Shares to enable it to satisfy its obligations on the conversion of the Subscription Receipts;
(vi) it will cause the Common Shares to be duly issued pursuant to the conversion of the Subscription Receipts and the certificates representing such Common Shares to be issued and delivered, or if uncertificated, for a deposit of uncertificated Common Shares to be made with the Depository or for the issuance to be recorded in the register of the Common Shares, in accordance with the provisions of this Agreement and the terms hereof and all Underlying Shares that are issued on the conversion of the Subscription Receipts will be fully paid and non- assessable securities;
(vii) it will use its reasonable commercial efforts to complete the Proposed Transaction on or before the Escrow Release Deadline;
(viii) the Corporation confirms that as tenant under any lease agreement at the date hereof it does not have a class of securities registered pursuant to Section 12 of the Exchange Act or financial lease whatsoever, except solely a reporting obligation pursuant to Section 15(d) of the Exchange Act. The Corporation covenants that in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used any class of its securities shall become registered pursuant to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) Section 12 of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or AdvancesExchange Act, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided Corporation shall incur a reporting obligation pursuant to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%Section 15(d) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraphExchange Act, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreement.
Appears in 1 contract
Samples: Subscription Receipt Agreement
General Covenants. EDL Hotels 3.1 Assignor shall execute and deliver to Assignee at any time or times during which this Assignment shall be in effect such further instruments as Assignee may deem to be necessary or appropriate to make effective this Assignment and the covenants herein contained.
3.2 Assignor shall (i) observe and perform, or cause to be observed and performed, in a timely manner, each and every term, covenant and provision of the Borrowers Contracts on its part thereunder to be observed and performed; (ii) send promptly to Assignee copies of all notices of default which Assignor shall send or receive with respect to the Contracts; (iii) enforce short of termination thereof the observance and performance of each and every term, covenant and agreeprovision of the Contracts on the part of any party thereunder to be observed and performed; and (iv) to appear in and defend, until at his expense, any action or proceeding arising under or in any manner connected with the Contracts.
3.3 Assignee is granted a security interest in and to the Contracts and all monies and claims for money due or to become due to Assignor under the loans made Contracts. For this purpose, Assignee shall be deemed a secured party, and Assignor shall be deemed a debtor. Assignor agrees to take such actions as Assignee may require to perfect the security interest granted hereby, including, without limitation, the preparation, execution and filing of financing statements in all appropriate offices.
3.4 At any time and from time to time, upon request of the Assignee, Assignor will give, execute, file and record any notice, financing statement, continuation statement, instrument, document or agreement that the Assignee may consider necessary or desirable to create, preserve, continue, perfect or validate any security interest granted hereunder or which the Assignee may consider necessary or desirable to exercise or enforce its rights hereunder with respect to such security interest. Without limiting the generality of the foregoing, the Assignee is authorized to file with respect to the Contracts one or more financing statements, continuation statements or other documents without the signature of the Assignor and to name therein the Assignor as debtor and the Assignee as secured party; and correct or complete, or cause to be corrected or completed, any financing statements, continuation statements or other such documents as have been filed naming the Assignor as debtor and the Assignee as secured party. The Assignor hereby appoints the Assignee as its attorney-in-fact and authorizes Assignee, on behalf of the Assignor, to execute, acknowledge, deliver, file and record any and all documents requiring execution by the Lenders under the Agreement are repaid in full Assignor and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account necessary or the SNC Loan Account only desirable to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility effectuate or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for facilitate the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders Assignment and the Majority Banks, obligations or (b) the repayment terms covenants of said loan depend on the existence Assignor hereunder. The power of available cash after servicing the Unsubordinated Indebtedness attorney granted hereby is coupled with an interest and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementirrevocable.
Appears in 1 contract
Samples: Loan Agreement (Advanced Lighting Technologies Inc)
General Covenants. EDL Hotels 7.1 The Seller hereby covenants to and agrees with the Buyer that the Seller shall:
7.1.1 act in good faith to procure, as soon as practicable after the date of this Agreement, each of the Borrowers covenant and agree, until all the loans made by the Lenders corporate approvals which it is required under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only applicable law to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee have obtained in order to obtain any other credit facility or financingpermit the Seller to perform under this Agreement, regardless of so as to satisfy the purpose of such credit facility or financing;condition precedent in section 4 hereof; and
(B) it will give notice 7.1.2 deliver to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances whenBuyer:
(i) the payment of all amounts due under such indebtedness documents referred to in section 4.1 hereof within five (including prepayment5) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent Business Days of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal signing of said loan is subsequent to the Final Maturity Date; orthis Agreement;
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens documents referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is section 3.2.1 hereof on the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterSettlement Date; and
(ciii) the document referred to in section 3.3 hereof on the case Business Day occurring immediately after the Settlement Date.
7.1.3 indemnify the Buyer immediately on demand against any Losses, as defined below, suffered by the Buyer in consequence of EDL Hotels the Seller’s failure to perform any of its obligations, covenants and/or undertakings made under or in this Agreement and/or of any Borrower, participating in a partial asset contribution, representation or selling, renting, or otherwise disposing of any significant part of its assets; each warranty of the transactions Seller made in this Agreement proves to be incorrect or untrue, PROVIDED THAT the Buyer shall have made an indemnification claim within the time period described in subparagraphs (b) section 6.4 hereof, and (c) hereinabove may nevertheless occur without PROVIDED FURTHER THAT the prior consent time period for the making of an indemnification claim in respect of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that covenants in: (i) section 8 hereof, shall end on the Borrowers’ Loans and Advances used to finance the transferred assets have been paid first (increased by interest provided for in Article 5.2 (B)(21st) anniversary of the Agreement). Any such repayment must date of the declaration of the dividend referred to in section 8 hereof, or (ii) in section 9 hereof, shall end on the first (1st) anniversary of the date of the declaration of the dividend referred to in section 9.2 hereof.
7.2 The Buyer hereby covenants to and agrees with the Seller that the Buyer shall:
7.2.1 on the Settlement Date, pay the Price; and
7.2.2 indemnify the Seller immediately on demand against any Losses, as defined below, suffered by the Seller in consequence of the Buyer’s failure to perform any of its obligations, covenants and/or undertakings made under or in this Agreement and/or if any representation or warranty of the Buyer made in this Agreement proves to be accompanied by a simultaneous repayment incorrect or untrue, PROVIDED THAT the Seller shall have made an indemnification claim within the time period described in section 6.4 hereof, and PROVIDED FURTHER THAT the time period for the making of EDL Hotels’ Loans for an amount pro rata indemnification claim in respect of the covenants in (i) section 8 hereof, shall end on the first (1st) anniversary of the date of the declaration of the dividend referred to in section 8 hereof, or (ii) in section 9 hereof, shall end on the first (1st) anniversary of the date of the declaration of the dividend referred to in section 9.2 hereof.
7.3 The Buyer and the Seller covenant and agree with each other that they will co-operate with one another and with the Agent to sign the document(s) attached as Annex 2 and to perform under said document(s) in order to give effect to the amount sale of the Borrowers’ Loans repaid Sale Shares.
7.4 The Buyer and the Seller covenant and agree with each other that they will:
7.4.1 co-operate with one another in good faith and perform as compared required pursuant to the aggregate amount of provisions of, to give effect to the Borrowers Loans transactions contemplated in, this Agreement; and
7.4.2 re-sign this Agreement, if necessarywith that text set out herein, on that date which occurs two (2) Business Days before the agreed Settlement Date, in order to comply with satisfy the ratios described hereinafter, repayment of a portion technical requirements of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares Macedonian Stock Exchange in respect of the Borrower in question at date by which an agreement for the nominal value thereof purchase and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent sale of shares on said Exchange via a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the block transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances must have agreed been signed.
7.5 The Parties agree that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the for purposes of this paragraphAgreement, Losses mean and include, in respect of any matter, event or circumstance, all demands, claims, actions, proceedings, damages, payments, fines, penalties, losses, costs (including for example and not by way of limitation legal costs), expenses (including for example and not by limitation, taxation of any nature whatsoever), disbursements or other liabilities in any case of any nature whatsoever, whether in respect of the Buyer, the following will constitute a transfer by EDL Hotels Company or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementTelemacedonia.
Appears in 1 contract
Samples: Share Purchase Agreement (Magyar Telekom Telecommunications CO LTD)
General Covenants. EDL Hotels (1) The Corporation represents, warrants, covenants and each of agrees with the Borrowers covenant Special Warrantholders that so long as any Special Warrant remains outstanding and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanmay be exercised:
(a) indebtedness for borrowed money granted the Corporation is duly authorized to create and issue the Borrowers under Special Warrants and that this Special Warrant Certificate be valid and enforceable against the AgreementCorporation;
(b) indebtedness for borrowed money granted by another Borrowerthe Corporation will at all times maintain its corporate existence, carry on and conduct its business in a proper and business-like manner and keep or cause to be kept proper books of account in accordance with generally accepted accounting practice;
(c) those granted the Corporation will reserve for the purpose and keep available sufficient unissued or created Common Shares and Warrants to enable it under to satisfy its obligations on the Credit Agreementexercise or deemed exercise of the Special Warrants;
(d) indebtedness for borrowed money which is granted the Corporation will cause the Common Shares and Warrants from time to it time issued pursuant to finance and simultaneously repay the total amount exercise or deemed exercise of the loans Special Warrants, and the Tranche C Advances; orcertificates representing such Common Shares and Warrants, to be duly issued and delivered in accordance with the Special Warrants and the terms hereof;
(e) indebtedness for borrowed money all Common Shares that are issued or created on exercise or deemed exercise of the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money Special Warrants will be considered subordinated fully paid and non-assessable;
(f) the Corporation will keep open on Business Days the registers of holders referred to in section 3.1 and will not take any action or omit to take any action which would have the Loans effect of preventing the Special Warrantholders from exercising any of the Special Warrants or receiving any of the Common Shares and Advances when:Warrants upon such exercise;
(g) the Corporation will make all requisite filings in connection with the exercise of the Special Warrants and issue of the Common Shares and the Warrants;
(h) the Corporation will provide the Special Warrantholders with the financial statements and other continuous disclosure documents required to be delivered by it to its shareholders under applicable corporate and securities laws;
(i) the payment Corporation will provide the Special Warrantholders with a copy of all amounts due under such indebtedness (including prepayment) is, any prospectus filed by its terms, subordinated to the prior payment of all amounts then due and payable to Corporation qualifying the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent distribution of the Majority Lenders and Underlying Securities issuable upon the Majority Banks, exercise or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date deemed exercise of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterSpecial Warrants; and
(cj) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in questiongenerally, the Unsubordinated Indebtedness Debt Coverage Ratio Corporation will well and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will truly perform and carry out all acts and things to be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer done by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementthese Terms and Conditions.
Appears in 1 contract
General Covenants. EDL Hotels and each of The Company covenants with the Borrowers covenant and agreeSpecial Warrant Agent that, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence so long as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanSpecial Warrants remain outstanding:
(a) indebtedness for borrowed money granted it is duly authorized to create and issue the Borrowers under Special Warrants and, when issued and countersigned as herein provided, or when issued in uncertificated form as herein provided, the AgreementSpecial Warrants will be valid and enforceable obligations of the Company;
(b) indebtedness it will reserve and keep available a sufficient number of (i) Underlying Shares for borrowed money granted by another Borrowerthe purpose of enabling it to satisfy its obligations to issue the Underlying Shares upon the exercise or deemed exercise of the Special Warrants, and (ii) Warrant Shares for the purpose of enabling it to satisfy its obligations to issue the Warrant Shares upon the exercise of the Underlying Warrants;
(c) those granted it will cause the Underlying Securities and the certificates representing the Underlying Securities from time to it under time acquired pursuant to the Credit Agreementexercise or deemed exercise of the Special Warrants to be duly issued and delivered in accordance with the Special Warrant Certificates and the terms hereof;
(d) indebtedness for borrowed money all Common Shares which is granted to it to finance and simultaneously repay the total amount will be issued upon exercise or deemed exercise of the loans Special Warrants will be fully paid and the Tranche C Advances; ornon-assessable, and all Underlying Securities will be free and clear of all encumbrances, except for resale restrictions as may be required under applicable Securities Laws;
(e) indebtedness for borrowed money it will use its commercially reasonable efforts to maintain its corporate existence or the interest payments corporate existence of any Successor Corporation and repayment carry on its business in the ordinary course, consistent with past practices;
(f) it will make all requisite filings under applicable Securities Laws, including those necessary to remain a reporting issuer not in default in such jurisdictions in which it is a reporting issuer and those filings required in connection with the issuance of principal of which are subordinated the Special Warrants;
(g) it will use its commercially reasonable efforts to have the Registration Statement declared effective by the SEC, within six months following the Closing Date;
(h) in the event that the Registration Statement is declared effective by the SEC, it will give written notice to the Loans Special Warrant Agent, CDS and Advances; for the purposes Agents of this paragraphthe filing of the Registration Statement and specifying the date on which the Special Warrants expire and the date of automatic exercise, indebtedness for borrowed money not later than two Business Days after the filing of the Registration Statement, and the Company will be considered subordinated provide written confirmation to the Loans Special Warrant Agent, CDS, the Agents and Advances when:the Special Warrantholders of any adjustment that has been made pursuant to Article 4 in the aforementioned notice;
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated it will not pay or give any consideration or other remuneration to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent any person in respect of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date exercise of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) isSpecial Warrants, except for administrative or professional services or for services performed by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assetsregistered dealer;
(Dj) if any instrument is required to be filed with or any permission, order or ruling is required to be obtained from the Securities Regulators or any other step is required under any federal or provincial law of the Designated Provinces before any securities or property which a Special Warrantholder is entitled to receive pursuant to the exercise or deemed exercise of a Special Warrant may properly and legally be delivered upon the due exercise or deemed exercise of a Special Warrant, the Company shall use its commercially reasonable efforts to make such filing, obtain such permission, order or ruling and take all such action, at its expense, as is required or appropriate in the circumstances;
(k) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with all covenants and satisfy all terms and conditions on its obligations, that a request for part to be performed and satisfied under this Indenture and advise the release Special Warrant Agent promptly in writing of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders any default under the Agreement or to that terms of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterthis Indenture; and
(cl) in the case of EDL Hotels or of any Borrowergenerally, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each it will well and truly perform and carry out all of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used acts or things to finance the transferred assets have been paid (increased be done by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementthis Indenture.
Appears in 1 contract
Samples: Special Warrant Indenture (Bunker Hill Mining Corp.)
General Covenants. EDL Hotels Friday Night hereby covenants and each agrees with the Debenture Trustee for the benefit of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders Debenture Trustee and the Majority BanksDebentureholders, other thanthat so long as any Debentures remain outstanding:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreementexcept as herein otherwise expressly provided, it will at all times maintain its corporate existence and carry on and conduct its business in a proper and efficient manner;
(b) indebtedness for borrowed money granted by another Borrowerit will at all times maintain its registered office in the province of its incorporation;
(c) those granted it will at all times comply with all other provisions of this Trust Indenture to it under the Credit Agreementbe complied with by Friday Night;
(d) indebtedness for borrowed money which is granted to it to finance will comply with all applicable filing requirements under the rules and simultaneously repay the total amount regulations of the loans and the Tranche C Advances; orthe
(e) indebtedness it will separately identify and segregate funds and other assets of Friday Night; maintain its financial statements and accounting records separate from those of, and not commingle its funds or other assets with those of, any Affiliate or any other Person or entity; and maintain its own separate bank accounts, payroll and books of account. All of Friday Night's assets will at all times be held by or on behalf of Friday Night and, when held on behalf of Friday Night by another entity, will at all times be kept identifiable (in accordance with customary usages) as assets owned by Friday Night;
(f) it will pay out of its own funds fees, if any, for borrowed money its directors and salaries, if any, of its officers and employees;
(g) it will observe all customary formalities regarding the interest payments corporate existence of Friday Night, including without limitation holding regular meetings of its board of directors and repayment its shareholders and maintenance of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money current minute books;
(h) it will only enter into business transactions with an Affiliate that will be considered subordinated on terms and conditions that are not more or less favourable to Friday Night than the Loans terms and Advances when:conditions that would be expected to have been obtained, under similar circumstances, from unaffiliated persons or entities;
(i) the payment it will maintain and preserve all of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due properties that are useful and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due necessary in the absence conduct of such cashits business in good working order and condition, ordinary wear and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assetstear excepted;
(Dj) it will not contract any agreement maintain insurance with reputable insurers in such amounts and against such risks as tenant under any lease agreement or financial lease whatsoever, except solely is usually carried by prudent owners of similar businesses and properties located in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not same general geographic areas in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterFriday Night operates; and
(ck) in the case of EDL Hotels it will pay or of cause to be paid all taxes levied, assessed or imposed upon it or any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of properties or any part thereof, as and when the transactions described same become due and payable, save and except for any such taxes which are being contested in subparagraphs (b) good faith and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders by appropriate proceedings and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata which Friday Night has set aside reserves or contingency funds satisfactory to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans andDebenture Trustee, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementacting reasonably.
Appears in 1 contract
Samples: Trust Indenture
General Covenants. EDL Hotels The Maker covenants and each agrees with the holder of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, thatthis Note as follows:
(A) it will use 4.1 The Maker shall punctually pay or cause to be paid the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, principal of and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice interest on this Note according to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, terms hereof.
4.2 The Maker shall and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanshall cause each Subsidiary to:
(a) indebtedness pay and discharge promptly, or cause to be paid and discharged promptly all taxes, assessments and governmental charges or levies imposed upon it or upon its income or upon any of its property, real, personal or mixed, or upon any part thereof, as well as all claims of any kind (including claims for borrowed money granted labor, materials and supplies which, if unpaid, might by law become a lien or charge upon its property), provided, however, that neither the Maker nor any Subsidiary shall be required to pay any such tax, assessment, charge, levy or claim if the amount, applicability or validity thereof shall currently be contested in good faith by appropriate proceedings and if the Maker or such Subsidiary shall have set aside on its books reserves (segregated to the Borrowers under the Agreementextent required by sound accounting practice) reasonably deemed by it adequate with respect thereto;
(b) indebtedness for borrowed money granted except as otherwise specifically permitted in this Note and as contemplated by another BorrowerSection 5 hereof, do or cause to be done all things necessary or appropriate to preserve and keep in full force and effect its corporate existence, rights and franchises, and use its best efforts to qualify as a foreign Maker entitled to do business in every jurisdiction in which the failure so to qualify would materially adversely effect on its business or properties;
(c) those granted to it under the Credit Agreement;comply in all material respects with all applicable federal, state, county and municipal laws, ordinances, rules, and regulations now in force or hereafter enacted; and
(d) indebtedness for borrowed money which is granted maintain its books, accounts and records in accordance with generally accepted accounting principles and permit any person or entity designated by reasonable, advance notice from the holder of this Note to it visit and inspect at reasonable hours any of its properties, books and financial records, and to finance make copies thereof and simultaneously repay take extracts therefrom.
4.3 The Maker shall give prompt written notice to the total amount holder of this Note after any officer of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated Maker knows or has reason to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, andknow that: either (a) a default or an Event of Default hereunder, or any condition, event or act which with the lenders making giving of notice or the loan corresponding to passage or lapse of time, or both, would constitute such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent an Event of Default, has occurred and is continuing, together with a specification of the Majority Lenders same and the Majority Banks, steps if any being taken to remedy the same; or (b) the repayment terms of said loan depend any other circumstance or event would have a material adverse effect on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cashMaker’s business, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) isproperties, by its termsoperations, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreementincome, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ prospects or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement condition, financial or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementotherwise.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Bone Biologics, Corp.)
General Covenants. EDL Hotels The Company represents, warrants and each covenants with the Warrant Agent for the benefit of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, Warrantholders that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers it will at all times maintain its corporate existence and remain in good standing under the Agreementjurisdiction of its incorporation, carry on and conduct its business in a proper and business-like manner, keep or cause to be kept proper books of account in accordance with generally accepted accounting principles and to carry on its business in the ordinary course;
(b) indebtedness for borrowed money granted by another Borrowerit is duly authorized to create and issue the Warrants to be issued hereunder and the Warrant Certificates when issued and certified as herein provided will be legal, valid, binding and enforceable obligations of the Company;
(c) those granted subject to the provisions of this Indenture, it under will cause the Credit AgreementShares from time to time subscribed for and purchased pursuant to the exercise of Warrants and the certificates representing such Shares to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(d) indebtedness for borrowed money which is granted at all times while any Warrants are outstanding it shall reserve and there shall remain unissued and conditionally allotted out of its authorized capital a number of Shares sufficient to it enable the Company to finance and simultaneously repay meet its obligations to issue Shares on the total amount exercise of the loans and the Tranche C Advances; orWarrants outstanding hereunder from time to time;
(e) indebtedness upon the exercise by the holder of any Warrant of the right of purchase provided for borrowed money therein and herein and upon payment of the interest payments and repayment of principal Exercise Price applicable thereto for each Share in respect of which are subordinated the right of purchase is so exercised, all Shares issuable upon the exercise shall be issued as fully paid and non-assessable;
(f) it will use its commercially reasonable efforts to ensure that the Loans Shares issuable upon exercise of the Warrants will be listed for trading on the Exchange. For greater certainty, using “commercially reasonable efforts” shall not preclude the Directors from approving or recommending a transaction which may result in the acquisition of all or substantially all of the Shares which transaction may result in the delisting of the Shares;
(g) the Company will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws in the Qualifying Jurisdictions;
(h) the issue of the Warrants does not and Advances; for will not result in a breach by the purposes Company of, and does not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach by the Company of any Applicable Laws, and does not and will not conflict with any of the terms, conditions or provisions of the articles, by-laws or resolutions of the Company or any trust indenture, loan agreement or any other agreement or instrument to which the Company is a party or by which it is contractually bound on the date of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:Indenture;
(i) it shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all other acts, deeds and assurances in law as the payment Warrant Agent may reasonably require for better accomplishing and effecting the intentions and provisions of all amounts due this Indenture;
(j) with respect to any notices to be given or other acts to be performed or which may be given or performed by the Warrant Agent under such indebtedness (including prepayment) isor pursuant to this Indenture, by its terms, subordinated the Company shall provide to the prior payment Warrant Agent in a timely manner all such information and documents as the Warrant Agent may reasonably request and are within the knowledge or control of the Company in order to verify the factual circumstances relating to such notices or acts and, if requested, such notices or acts and, if requested, such information and documents shall be certified as correct by an officer of the Company;
(k) generally, it will well and truly perform and carry out all amounts then due of the acts or things to be done by it as provided in this Indenture and payable will not take any action which might reasonably be expected to deprive holders of Warrants their rights to acquire Shares on the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either exercise thereof;
(al) the lenders making Company shall promptly inform the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent Warrant Agent of the Majority Lenders and number of Warrants owned by the Majority BanksCompany, a Subsidiary or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due any Affiliate in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment any determination of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan “outstanding” pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000Section 1.2(c);
(Em) it will make all requisite filings under applicable laws and regulations, including, without limitation, Securities Laws, including those necessary to remain a reporting issuer not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) default of the Agreement and Article 17 (Guarantee – Security Interests) requirements of the Credit Agreement; or
(b) liens arising by operation Securities Laws in the provinces of law or from Canada in which it is a judicial decision as a result reporting issuer and those required on the exercise of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterWarrants; and
(cn) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part it will duly and punctually perform all of its assets; each of the transactions described in subparagraphs (b) covenants and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders satisfy all terms and Majority Banks, conditions on its part to be performed and satisfied under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementIndenture.
Appears in 1 contract
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to The Company covenants with the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans Subscription Receipt Agent and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances whenAgents that so long as any Subscription Receipts remain outstanding:
(i) it will promptly comply with all filing and other requirements under all applicable Securities Laws, including where required by the payment Agency Agreement, the filing of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated amendments to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent Prospectuses in each of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; orDesignated Provinces;
(ii) the payment of all amounts then due in connection The Company will use commercially reasonable efforts to ensure that there is available “adequate current public information” with said indebtedness (including prepayment) is, by its terms, subordinated respect to the prior payment Company within the meaning of Rule 144(c) under the 1933 Act commencing six months after the Closing Date and at all amounts then due and payable times thereafter when the registration statement referred to in Schedule “F” to the Lenders under the Subscription Agreement is not effective and up to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assetsdate;
(Diii) The Company will cause the Prospectuses and the Registration Statement and any other documents required to be filed therewith to be prepared and filed with the Securities Commission in each of the Designated Provinces in accordance with all applicable Securities Laws and as expeditiously as reasonably practicable after the Closing Date, in each case in form and substance reasonably satisfactory to the Agents;
(iv) The Company will use its commercially reasonable efforts to obtain receipts for the Prospectuses and the Registration Statement and to qualify the Underlying Common Shares and Warrants for distribution in the Designated Provinces to the holders of Subscription Receipts upon the exercise thereof;
(v) Upon or prior to the exercise of the Subscription Receipts, the Company will cause the Final Prospectus to be delivered to each of the registered holders of Subscription Receipts or any transferees thereof;
(vi) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in announce by press release the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation occurrence of the Phase IB Installations, for an annual aggregate pre-tax rental amount not Exchange Date in excess of one million five hundred thousand euros (€1,500,000)accordance with the provisions hereof;
(Evii) it will not grant nor suffer to exist any lien on perform and carry out all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising acts or things to be done by operation of law or from a judicial decision it as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit this Agreement;
(Fviii) it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to take all necessary steps satisfy its obligations to maintain its legal existence and, without limiting issue Underlying Common Shares and Warrants Shares pursuant to the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders Subscription Receipts and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a mergerWarrant Certificates;
(bix) it will cause the Underlying Common Shares and Warrants to be duly issued and delivered in accordance with the case of EDL Hotels, merging with any entity, except in Subscription Receipts and the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterterms hereof; and
(cx) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of it will use its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) best efforts to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it Underlying Common Shares and Warrant Shares, upon issuance, are listed and posted for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear trading on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for TSX and the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementAMEX.
Appears in 1 contract
General Covenants. EDL Hotels (a) The Corporation covenants with the Subscription Receipt Agent and the Lead Underwriters, on behalf of the Underwriters, that so long as any Subscription Receipts remain outstanding:
(i) it will use its reasonable best efforts to maintain its existence;
(ii) it will make all requisite filings under applicable Canadian and United States securities legislation including those necessary to remain a reporting issuer not in material default in each of the Borrowers covenant Provinces of Canada;
(iii) it will announce by press release the occurrence of the Acquisition Closing Date or the Termination Date, as applicable, in accordance with Section 3.1 or Section 3.3(a), as applicable;
(iv) it will perform and agree, until all the loans made by the Lenders under the Agreement are repaid in full and carry out all of the acts or things to be done by it as provided in this Agreement;
(v) prior to the earlier of the Acquisition Closing Date and the Termination Date, it will not sell all or substantially all of the properties or assets of the Corporation to any other Person;
(vi) it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations arising to issue Common Shares pursuant to the Subscription Receipts;
(vii) it will cause the Common Shares and the certificates representing the Common Shares from time to time issued pursuant to the Subscription Receipts to be duly issued as fully paid and non-assessable shares and delivered in accordance with the Subscription Receipts and the terms hereof;
(viii) it will use its reasonable best efforts to ensure that (until the earlier of the Acquisition Closing Time and the Termination Date) the Subscription Receipts are listed and posted for said Borrower hereunder are performedtrading on the TSX and the Common Shares continue to be listed and posted for trading on the TSX and the New York Stock Exchange; and
(ix) with respect to any notices to be given or other acts to be performed or which may be given or performed by the Lead Underwriters and any other Underwriters under or pursuant to this Agreement (including the notice contemplated by Section 3.1(a)), it shall provide to the Lead Underwriters, on behalf of the Underwriters, in a timely manner all such information and documents as the Underwriters (or any of them) may reasonably request and is within the knowledge or control of the Corporation in order to verify the factual circumstances relating to such notices or acts and, if requested, such information shall be certified correct by the Corporation.
(b) The Corporation further covenants with the Subscription Receipt Agent and the Lead Underwriters, on behalf of the Underwriters, that, from the date hereof to the earlier of the Termination Date and the Acquisition Closing Date, it will not do any of the following:
(i) subdivide or redivide the outstanding Common Shares into a greater number of Common Shares;
(ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of Common Shares, other than a reduction in the number of outstanding Common Shares through purchases of Common Shares by, or on behalf of, the Corporation pursuant to a normal course issuer bid in accordance with applicable securities laws;
(iii) issue Common Shares to holders of all or substantially all of the outstanding Common Shares by way of a dividend (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends in the form of Common Shares in lieu of cash dividends paid in the ordinary course on the Common Shares);
(iv) fix a record date for the making of a dividend to all or substantially all the holders of its outstanding Common Shares of:
(A) it will use securities of any class other than Common Shares and other than securities distributed to holders of Common Shares who have elected to receive dividends in the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose form of such credit facility or financingsecurities in lieu of dividends paid in the ordinary course;
(B) it will give notice to the Lenders’ Agentrights, promptly upon the occurrence thereofoptions or warrants or securities exercisable for, of any event which constitutes an Event of Default convertible into or could constitute an Event of Default after notice exchangeable for, Common Shares or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such eventother securities;
(C) it will not contract any indebtedness for borrowed money, without the consent evidences of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advancesindebtedness; or
(eD) indebtedness for borrowed money assets (excluding dividends paid in the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:ordinary course);
(iv) reclassify the payment Common Shares or undertake a reorganization of the Corporation or a consolidation, amalgamation, arrangement or merger of the Corporation with any other Person or a sale or conveyance of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of or substantially all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders property and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date assets of the principal Corporation to any other Person or entity or a liquidation, dissolution or winding-up of said loan is subsequent to the Final Maturity DateCorporation; or
(iivi) take any action affecting the payment Common Shares that, in the opinion of all amounts then due in connection with said indebtedness (including prepayment) isthe Board of Directors of the Corporation, by its termsacting reasonably, subordinated would materially adversely affect the rights of the Receiptholders and/or the rights attached to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementSubscription Receipts.
Appears in 1 contract
Samples: Subscription Receipt Agreement (Pembina Pipeline Corp)
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness Debtor agrees to pay promptly when due all taxes, assessments and governmental charges upon or against the Collateral, or Debtor, or for borrowed money granted the property or operations of Debtor, in each case before the same become delinquent and before penalties accrue thereon, unless and to the Borrowers under extent that the Agreement;same are diligently being contested in good faith by appropriate proceedings and for which Debtor has established adequate reserves. Debtor shall give written notice to Secured Party of all happenings and events adversely affecting the Collateral or the value or amount thereof; including, without limitation, the creation or assertion of any Lien or security interest against any of the Collateral that is not a Permitted Lien.
(b) indebtedness In the event Debtor fails to pay taxes, assessments, costs and expenses which Debtor is required to pay or in the event Debtor fails to keep the Collateral free from other assignments, security interests, Liens or encumbrances not permitted under the terms of this Security Agreement, Secured Party may make expenditures for borrowed money granted by another Borrower;any and all such purposes. All costs and expenses of Secured Party in retaking, holding, preparing for sale and selling or otherwise realizing upon any Collateral or enforcing any provisions hereof, including reasonable attorneys' fees, shall constitute part of the Indebtedness, and shall bear interest from the date incurred at the Default Rate.
(c) those granted Debtor shall: (i) at all reasonable times allow Secured Party and its agents or representatives to it examine, inspect and/or make abstracts from Debtor's books and records and to arrange for verification of Collateral, under reasonable procedures, which in the Credit Agreement;case of Accounts may be made directly with the Account debtors or by other methods; (ii) furnish to Secured Party upon request additional statements of any Account, together with all notes or other papers evidencing the same and any guaranty, security or other information relating thereto; and (iii) Debtor will furnish or cause to be furnished to Secured Party written reports of any changes that would be required to be made to the Schedules to this Security Agreement in order for the information contained in such Schedules to remain accurate, at or before the time events requiring such changes occur.
(d) indebtedness for borrowed money which is granted to it to finance Debtor shall at all times and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of in all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to regards comply with the ratios described hereinafterterms and provisions of those certain Services Agreements dated as of September 5, repayment of a portion of the additional Loans or Advances2003, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof by and (iii) EDL Hotels has provided to the Lenders’ Agent between Debtor and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementrespective Escalade Domestic Subsidiaries.
Appears in 1 contract
Samples: Collateral Assignment and Security Agreement (Escalade Inc)
General Covenants. EDL Hotels Kinross represents, warrants, covenants and each of agrees with the Borrowers covenant Trustee that so long as any Warrant remains outstanding and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanmay be exercised:
(a) indebtedness for borrowed money granted Kinross is duly authorized to create and issue the Borrowers under Warrants and that the AgreementWarrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against Kinross;
(b) indebtedness for borrowed money granted by another BorrowerKinross will at all times maintain its corporate existence, carry on and conduct its business in a proper and business-like manner and keep or cause to be kept proper books of account in accordance with generally accepted accounting practice;
(c) those granted Kinross will reserve for the purpose and keep available sufficient unissued Common Shares to enable it under to satisfy its obligations on the Credit Agreementexercise of the Warrants;
(d) indebtedness for borrowed money which is granted Kinross will cause the Common Shares from time to it time issued pursuant to finance and simultaneously repay the total amount exercise of the loans Warrants, and the Tranche C Advances; orcertificates representing such Common Shares, to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(e) indebtedness for borrowed money all Common Shares that are issued or created on exercise of the interest payments Warrants will be fully paid and repayment non-assessable;
(f) Kinross will cause the Trustee to keep open on business days the registers of principal holders and registers of transfers referred to in Section 3.1 and will not take any action or omit to take any action which are subordinated would have the effect of preventing the Warrantholders from exercising any of the Warrants or receiving any of the Common Shares upon such exercise;
(g) Kinross will make all requisite filings, including filings with appropriate Securities Commissions, in connection with the exercise of the Warrants and issue of the Common Shares;
(h) Kinross shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all other acts, deeds and assurances in law as the Loans and Advances; Trustee may reasonably require for the purposes better accomplishing and effecting of the provisions and intention of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:Indenture;
(i) generally, Kinross will well and truly perform and carry out all acts and things to be done by it as provided in this Indenture and will not take any action which might reasonably be expected to deprive the payment Warrantholders of all amounts due under their rights to acquire Common Shares upon the exercise of the Warrants;
(j) Kinross shall maintain its status as a reporting issuer (or the equivalent) not in default in each of the Qualifying Jurisdictions providing for such indebtedness a regime and will use its best efforts to maintain the listing of (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (ai) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders Common Shares and the Majority Banks, or (b) the repayment terms of said loan depend Warrants on the existence of available cash after servicing the Unsubordinated Indebtedness Toronto Stock Exchange and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to Common Shares on the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account American Stock Exchange or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterNew York Stock Exchange; and
(ck) in Kinross will, no later than the case earlier of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance date which is 15 days after the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) five day volume weighed average trading price of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to Common Shares on the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, Toronto Stock Exchange exceeds $4.25; and (ii) EDL Hotels has purchased or has had purchased April 30, 2003, file a shelf prospectus in the shares Provinces of Ontario and Quebec and a registration statement on Form F-10 under the Multijurisdictional Disclosure System with the U.S. Securities and Exchange Commission relating to the Common Shares issuable on the exercise of the Borrower in question at Warrants, and use its reasonable best efforts to keep the nominal value thereof and (iii) EDL Hotels has provided prospectus continuously effective for so long as shall be necessary to permit the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form exercise of the model attached as Schedule VII to Warrants (which period shall terminate no later than the Agreement evidencing that, after the completion earlier of the transaction in question, Expiry Time or the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments date on which all of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances Warrants have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(aso exercised);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreement.
Appears in 1 contract
General Covenants. EDL Hotels and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to The Corporation covenants with the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans Subscription Receipt Agent and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances whenAgents that so long as any Subscription Receipts remain outstanding:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by it will use its terms, subordinated reasonable best efforts to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; ormaintain its existence;
(ii) it will make all requisite filings under applicable Canadian securities legislation including those necessary to remain a reporting issuer not in default in each of the payment Provinces of all amounts then due in connection with said indebtedness Canada;
(including prepaymentiii) is, it will promptly announce by its terms, subordinated to press release the prior payment occurrence of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account Acquisition Time or the SNC Loan AccountTermination Date, as the case may be (be, in accordance with Section 3.1 or Section 3.5(a), as the exception of those amounts set forth in subparagraph (d) above) and case may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assetsbe;
(Div) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation perform and carry out all of the Phase IB Installations, for an annual aggregate pre-tax rental amount not acts or things to be done by it as provided in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit this Agreement;
(Fv) prior to take all necessary steps to maintain its legal existence andthe earlier of the Acquisition Date and the Termination Date, without limiting it will not sell the foregoingproperties or assets of the Corporation as, or substantially as, an entirety, to refrain from the following, unless with the prior consent any other entity other than to a wholly-owned subsidiary of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a mergerCorporation;
(bvi) it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations to issue Common Shares pursuant to the Subscription Receipts;
(vii) it will cause the Common Shares issued pursuant to the Subscription Receipts to be duly issued as fully paid and non-assessable Common Shares and delivered in accordance with the case of EDL Hotels, merging with any entity, except in Subscription Receipts and the framework terms hereof;
(viii) it will use its best efforts to ensure that (until the earlier of the construction Acquisition Date and the Termination Date) the Subscription Receipts and the Common Shares continue to be or operation of are listed and posted for trading on the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterToronto Stock Exchange; and
(cix) it will promptly advise the Subscription Receipt Agent, the Agents and the holders of Subscription Receipts in the case of EDL Hotels or writing of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment default under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes terms of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreement.
Appears in 1 contract
Samples: Subscription Receipt Agreement (Obsidian Energy Ltd.)
General Covenants. EDL Hotels and each of The Corporation covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, thatTrustee that so long as any Warrants remain outstanding:
(Aa) the Warrants, when issued and countersigned as provided in this Indenture, will be valid and enforceable against it in accordance with and subject to the provisions of this Indenture;
(b) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit reserve and keep available a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless sufficient number of Common Shares for the purpose of such credit facility or financingenabling it to satisfy its obligations to issue Common Shares upon the exercise of the Warrants;
(Bc) it will cause the Common Shares and the certificates representing the Common Shares from time to time acquired pursuant to the exercise of the Warrants to be duly issued and delivered in accordance with the Warrant Certificates and the terms hereof;
(d) all Common Shares which shall be issued upon exercise of the right to acquire provided for herein and in the Warrant Certificates shall be fully paid and non-assessable;
(e) the Corporation will do, or cause to be done, all things necessary to preserve and keep in full force and effect its corporate existence, provided however that (subject to Article 4 and Section 8.2) nothing will prevent the amalgamation, consolidation, merger or sale of, or other business combination involving the Corporation;
(f) if at any time no Registration Statement is effective, it will give notice to the Lenders’ AgentTrustee forthwith and will give notice, promptly upon in accordance with the occurrence thereofprovisions set out in Article 10, together with a form of Notice of Intent to Exercise for the cashless exercise or redemption right set out in Section 3.7 to each Warrantholder, of such fact as soon as reasonably practicable, but in any event which constitutes an Event such notice must be sent within three Business Days, after learning that no Registration Statement is effective. Such notice must be sent by fax if possible to the Depository; provided that until the date that is two Business Days after the date the form of Default or could constitute an Event Notice of Default after notice or after a time Intent to Exercise is provided to the holders of Warrants, the Determination Date for any Warrant will be any date specified by the holder pursuant to subsection 3.7(d) during the period provided for in Article 13 (Events starting as of default) has elapsed, when no Registration Statement is effective and will state ending as of the facts pertaining to such eventprovision of the form;
(Cg) it will use reasonable best efforts to maintain the Registration Statement continuously effective under the U.S. Securities Act until the Expiry Date or exercise of all Warrants;
(h) it will use its best efforts to ensure that the Warrants and all Common Shares outstanding or issuable from time to time continue to be or are listed and posted for trading on the NYSE Amex (or such other recognized stock exchange acceptable to the Corporation);
(i) it will perform and carry out all of the acts or things to be done by it as provided in this Indenture;
(j) it will not contract close its transfer registers or take any indebtedness for borrowed money, without other action which might deprive the consent Warrantholders of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted opportunity of exercising their right of purchase pursuant to the Borrowers under Warrants held by such persons during the Agreementperiod of 10 Business Days after giving of the notice required by Section 4.7;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(Dk) it will not contract any agreement execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary Trustee may reasonably require for the construction or operation better accomplishing and effecting the intentions and provisions of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterthis Indenture; and
(cl) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware shall become a “foreign issuer” as defined in Rule 902 of any mortgage which has been completed or which may be completed prior Regulation S under the U.S. Securities Act, the Corporation shall promptly deliver to the mortgages set forth Trustee an Officers’ Certificate (in Article 17.2(a);
(Ka form provided by the Trustee) to comply with certifying such status and other information as the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementTrustee may require at such given time.
Appears in 1 contract
General Covenants. EDL Hotels and each of The Corporation covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence Warrant Agent that so long as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanWarrants remain outstanding:
(a) indebtedness for borrowed money granted the Warrants, when issued and countersigned as provided in this Indenture, will be valid and enforceable against it in accordance with and subject to the Borrowers under the Agreementprovisions of this Indenture;
(b) indebtedness it will reserve and keep available a sufficient number of Common Shares for borrowed money granted by another Borrowerthe purpose of enabling it to satisfy its obligations to issue Common Shares upon the exercise of the Warrants;
(c) those granted it will cause the Common Shares and the certificates representing the Common Shares from time to it under time acquired pursuant to the Credit Agreementexercise of the Warrants to be duly issued and delivered in accordance with the Warrant Certificates and the terms hereof;
(d) indebtedness for borrowed money all Common Shares which is granted to it to finance and simultaneously repay the total amount shall be issued upon exercise of the loans right to acquire provided for herein and in the Tranche C Advances; orWarrant Certificates shall be fully paid and non-assessable;
(e) indebtedness for borrowed money the interest payments Corporation will do, or cause to be done, all things necessary to preserve and repayment keep in full force and effect its corporate existence and carry on its business in the ordinary course, provided however that (subject to Article 4 and Section 8.2) nothing will prevent the amalgamation, consolidation, merger or sale of, or other business combination involving the Corporation so long as the holders of principal Common Shares receive securities of an entity which are subordinated is listed on a recognized stock exchange, or cash, or the holders of Common Shares have approved the transaction in accordance with the requirements of Applicable Legislation, including applicable corporate and securities laws;
(f) it will perform and carry out all of the acts or things to be done by it as provided in this Indenture;
(g) it will not close its transfer registers or take any other action which might deprive the Warrantholders of the opportunity of exercising their right of purchase pursuant to the Loans Warrants held by such persons during the period of 10 Business Days after giving of the notice required by Section 4.8;
(h) the Corporation will promptly notify the Warrant Agent and Advances; for the purposes Warrantholders in writing of any material default under the terms of this paragraph, indebtedness Warrant Indenture which remains unrectified for borrowed money will be considered subordinated to the Loans and Advances when:more than 30 days following its occurrence;
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated Corporation will give to the prior payment of all amounts then due and payable to Warrantholders, in the Lenders under the Agreement manner provided in Section 4.8 hereof, and to the Banks under the Credit AgreementWarrant Agent, and: either (a) the lenders making the loan corresponding notice of its intention to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banksfix a record date, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Accounteffective date, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installationsbe, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens event referred to in subparagraphs (c) and (d) above, affecting Section 4.8 hereof which may give rise to an asset adjustment in the Exercise Price or a right which is in the subject matter number of one Common Shares purchasable upon exercise of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterWarrants; and
(cj) that it will execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of Warrant Agent may reasonably require for the transactions described in subparagraphs (b) better accomplishing and (c) hereinabove may nevertheless occur without effecting the prior consent of the Majority Lenders intentions and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes provisions of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementIndenture.
Appears in 1 contract
Samples: Warrant Indenture
General Covenants. EDL Hotels The Corporation hereby covenants and each of the Borrowers covenant and agreeagrees that, until subject to all the loans made by the Lenders under the Agreement are repaid in full and all provisions of the other obligations arising for said Borrower hereunder are performed, thatthis Indenture:
(Aa) it will use duly and punctually pay or cause to be paid to the amounts withdrawn Holder of every Security of each series the principal thereof, premium thereon, if any, and interest accrued thereon and, in case of default, interest on the amount in default, on the dates and at the places, in the money and in the manner mentioned herein and in such Securities;
(b) it will at all times maintain its corporate existence and will carry on and conduct its business in a proper and efficient manner; provided, however, that nothing herein contained shall prevent the Corporation from ceasing to operate any business or property if, in the SCA Loan Account opinion of the Directors, it shall be advisable and in the best interests of the Corporation so to do;
(c) in order to prevent any accumulation after the Stated Maturity of interest, it will not, directly or indirectly, extend or assent to the SNC Loan Account only to credit a Designated Accountextension of time for payment of any interest upon any Security, and will not use the Agreement nor refer not, directly or indirectly, be a party to its existence as a guarantee or approve any such arrangement by purchasing or funding such interest or in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financingmanner;
(Bd) it will give notice pay the Trustee reasonable remuneration for its services hereunder and will repay to the Lenders’ AgentTrustee on demand all expenditures or advances whatever which the Trustee may reasonably make or incur in and about the execution of the trusts hereby created, promptly upon the occurrence thereof, and such money shall be payable out of any event which constitutes an Event funds coming into the possession of Default the Trustee in priority to any Security, except funds held in trust for the benefit of the Holders of particular Securities or could constitute an Event Coupons. The said remuneration shall continue to be payable until the trusts hereof shall be finally wound up and whether or not the trusts hereof shall be in the course of Default after notice administration by or after under the direction of a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;court; and
(Ce) it will not contract create any mortgage, charge, hypothec, pledge or other security or encumbrance on any of its property or assets to secure any indebtedness for borrowed money without also at the same time or prior thereto securing the Securities then Outstanding so that, in the Opinion of Counsel, such Securities shall be secured equally and rateably with such other indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do this covenant shall not result from the failure of EDL Hotels or of such Borrower apply to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order nor operate to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”prevent:
(i) any sale security, except on fixed assets and shares of any Subsidiary or contribution by EDL Hotels Associate, given in the ordinary course of business to a third party of all any bank or part banks, or others, to secure any indebtedness payable on demand or maturing within 12 months of the business (“fonds de commerce”) concerning one of the Phase IB Installations; anddate that such indebtedness is originally incurred;
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease AgreementPurchase Money Mortgage;
(Giii) not to create any subsidiary nor to acquire any participation in any entity security on cash or company except marketable securities of the Corporation granted in connection with crude oil, natural gas or natural gas liquids price hedging arrangements;
(iv) any security on any Petroleum and Natural Gas Right, tangible assets associated therewith or the products derived therefrom or the proceeds of sale of such products, to secure production payments, royalties, carried interests and similar obligations or to secure obligations in connection with or necessarily incidental to commitments of purchase and sale of, or the transportation or distribution of, products derived from the Petroleum and Natural Gas Right, including without limitation forward sales;
(v) any security on any resource property of the Corporation that has not been in commercial production during the 12-month period ending on the date hereof, or has not been in commercial production during the 12-month period ending at the time of the imposition of such security to secure any indebtedness incurred for the development or improvement thereof or the development or improvement of any other resource property of the Corporation that has not been in commercial production during the 12-month period ending on the date hereof or has not been in commercial production during the 12-month period ending at the time of the imposition of such security;
(vi) any security in favour of the government of any country in which the Corporation owns assets or carries on business or the government of any province, state, municipality or other political subdivision in any such country, or any department or agency of any such government, given pursuant to a contract, concession, lease, license, franchise, grant, permit or other instrument pertaining to such assets or business or required by applicable laws;
(vii) liens for taxes, assessments or other governmental charges not yet due or, if due, the validity of which is being contested in good faith, and liens for the excess of the amount of any past due taxes for which a final assessment has not been received over the amount of such taxes as estimated and paid by the Corporation;
(viii) unless it constitutes an Event of Default, the lien of any judgment rendered or claim filed against the Corporation, which is being contested in good faith;
(ix) undetermined or inchoate liens and charges (including builders', mechanics', warehousemen's, carriers' and other similar liens) incidental to construction or current operations which relate to obligations not due or delinquent or which are being contested in good faith by the Corporation;
(x) liens incurred or created in the ordinary course of business on any particular Petroleum and Natural Gas Right or on any tangible assets associated therewith as security, in favour of any other person who is conducting the exploration, exploitation, development or operation of the Phase IB Installationsproperty or asset, to secure payment by the Corporation of its proportion of the costs and expenses of such exploration, exploitation, development or operation incurred by such other person;
(Hxi) any security given by the Corporation to ensure that no agreement is entered into a public utility or municipality or governmental or other public authority when required by such utility or municipality or other authority in connection with a third party if such agreement contains provisions contemplating utility or municipal services required for the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) operations of the net assets Corporation in the ordinary course of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrowerits business;
(Ixii) any security on a lease or other instrument permitting the extraction of substances other than crude oil, natural gas, natural gas liquids and related products by the Corporation, provided that any such lease does not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for interfere with the performance enjoyment by the Corporation of any commitment whatsoeverPetroleum and Natural Gas Right;
(xiii) any renewal, refunding or extension of any security or encumbrance referred to in the foregoing clauses (i) or (xii) or of any security or encumbrance on any property in existence at the time of acquisition thereof, in which the principal outstanding after such renewal, refunding or extension is not increased and the security or encumbrance is limited to the property originally subject thereto and any improvements thereon; or
(xiv) any security or encumbrance, other than as provided herein or those referred to in the Phase IB Documents;
foregoing clauses (Ji) to immediately inform (xiii), created by the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior Corporation if, after giving effect to the mortgages set forth in Article 17.2(a);
(K) to comply with creation of such security or encumbrance, the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” aggregate principal amount of the Covenants, it being noted that the authorizations indebtedness secured by such securities or waivers that must encumbrances would not be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions greater than 5% of article 3 of the Common AgreementShareholders' Equity.
Appears in 1 contract
Samples: Trust Indenture (Union Pacific Resources Group Inc)
General Covenants. EDL Hotels Crystallex represents, warrants, covenants and each of agrees to and with the Borrowers covenant Warrant Agent that, so long as any Warrant remains outstanding and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanmay be exercised:
(a) indebtedness for borrowed money granted Crystallex is duly authorized to create and issue the Borrowers under Warrants and that the AgreementWarrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against Crystallex;
(b) indebtedness for borrowed money granted by another BorrowerCrystallex will at all times maintain its corporate existence, carry on and conduct its business in a proper and business-like manner, keep or cause to be kept proper books of account in accordance with generally accepted accounting practice and Crystallex will send to Warrantholders copies of all financial statements furnished to its shareholders during the term of this Indenture;
(c) those granted Crystallex will continue, and will cause each of its subsidiaries to it under continue, to engage in business of the Credit Agreementsame general type as now conducted by Crystallex and its subsidiaries, and will preserve, renew and keep in full force and effect its respective corporate existence and their respective material rights, privileges and franchises necessary or desirable in the normal conduct of business;
(d) indebtedness for borrowed money which is granted Crystallex and each of its subsidiaries will not, in a single transaction or a series of related transactions, (i) consolidate with or merge with or into any other person, or (ii) permit any other person to it consolidate with or merge into it, unless (x) either (A) Crystallex shall Back to finance and simultaneously repay Contents be the total amount survivor of such merger or consolidation or (B) the surviving person shall expressly assume by supplemental agreement all of the loans obligations of Crystallex under the Subscription Agreements, this Indenture and the Tranche C AdvancesSpecial Warrant Indenture; or(y) if Crystallex is not the surviving entity, such surviving entity’s common shares shall be listed on either The New York Stock Exchange, AMEX, Nasdaq National Market or TSX and (z) Crystallex has delivered to the Warrantholders an officers certificate and opinion of counsel, each stating that such consolidation, merger or transfer complies with this Indenture, that the surviving person agrees to be bound thereby and that all conditions precedent in this Indenture relating to such transaction have been satisfied;
(e) indebtedness Crystallex will reserve for borrowed money the interest payments purpose and repayment keep available sufficient unissued or created Common Shares to enable it to satisfy its obligations on the exercise of principal of which are subordinated the Warrants and will issue and deliver such shares in accordance with the provisions hereof;
(f) Crystallex will cause the Common Shares from time to time issued pursuant to the Loans exercise of the Warrants, and Advances; for the purposes certificates representing such Common Shares, to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(g) all Common Shares that are issued or created on exercise of this paragraph, indebtedness for borrowed money the Warrants will be considered subordinated fully paid and non-assessable;
(h) Crystallex will cause the Warrant Agent to keep open on business days the Loans registers of holders and Advances when:registers of transfers referred to in section 3.1 and will not take any action or omit to take any action which would have the effect of preventing the Warrantholders from exercising any of the Warrants or receiving any of the Common Shares upon such exercise;
(i) Crystallex will make all requisite filings, including filings with the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders SEC and the Majority BanksSecurities Commissions, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation exercise of the Phase IB AssetsWarrants;
(Dj) Crystallex is a “reporting issuer” not in default under the securities legislation of each Qualifying Jurisdictions and has timely filed all forms and reports under the United States Securities Exchange Act of 1934, as amended, required to be filed by it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely since it has become subject to the periodic reporting requirements thereunder and there is no material change in the event affairs of Crystallex which presently requires disclosure under applicable securities laws which has not been so disclosed and no such disclosure has been made on a confidential basis since September 30, 2002which has not subsequently been disclosed. Crystallex covenants and agrees to use its reasonable best efforts to ensure that EDL Hotels concludes such agreements with respect it remains a reporting issuer in good standing under the securities legislation Ontario and British Columbia until one year after the Expiry Time; Back to equipment necessary Contents
(k) Crystallex shall use its commercially reasonable best efforts to arrange for the construction or operation listing and posting for trading of the Phase IB InstallationsCommon Shares on the TSX or other principal exchange in Canada and the AMEX upon the due exercise of the Warrants, for an annual aggregate pre-tax rental amount not in excess of and to maintain such listing until one million five hundred thousand euros (€1,500,000)year after the Expiry Time;
(El) it Crystallex will not grant nor suffer to exist any lien on make all or part of its assets or revenues other than:
(a) liens described requisite filings, including filings with the SEC and appropriate Securities Commissions, in Article 17 (Guarantee – Security Interests) connection with the due exercise of the Agreement Warrants and Article 17 (Guarantee – Security Interests) issue of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterCommon Shares; and
(cm) in the case of EDL Hotels or of any Borrowergenerally, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) Crystallex will well and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders truly perform and Majority Banks, carry out all acts and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used things to finance the transferred assets have been paid (increased be done by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementthis Indenture.
Appears in 1 contract
General Covenants. EDL Hotels The Company covenants with the Trustee that so long as any Warrants remain outstanding:
(a) It will at all times maintain its corporate existence and carry on and conduct its business in a proper and business-like manner;
(b) It will reserve a sufficient number of Common Shares to satisfy the rights of acquisition provided for herein.
(c) It will cause the Common Shares from time to time subscribed and paid for pursuant to the Warrants in the manner herein provided and the certificates representing such Common Shares to be duly issued and delivered in accordance with the Warrants and the terms hereof.
(d) All Common Shares that shall be issued upon exercise of the right to purchase provided for herein, upon payment of the Exercise Price, shall be issued as fully paid and non-assessable.
(e) It will use its best efforts to maintain the listing of the Warrants on the TSX.
(f) It will use its reasonable efforts to effect and maintain the quotation of the Warrants on Nasdaq.
(g) It will use its reasonable efforts to maintain the listing of the Common Shares on the TSX and the NYSE.
(h) It will use its reasonable efforts to maintain its status as a reporting issuer or equivalent not in default, and not be in default in any material respect of the applicable requirements of, the applicable securities laws of each of the Borrowers covenant provinces of Canada and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all federal securities laws of the other obligations arising for said Borrower hereunder are performed, that:United States.
(Ai) it will use If at any time no Registration Statement is effective, the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it Company will give notice to the Lenders’ AgentTrustee forthwith and will give notice, promptly upon in accordance with the occurrence thereofprovisions set out in Section 9.1, together with a form for the exercise of the redemption right set out in Section 3.4 (the "Redemption Form") to each Warrantholder having an address in the United States shown on the register of holders of Warrants kept by the Trustee pursuant to Section 2.8 of such fact as soon as reasonably practicable, but in any event which constitutes an Event of Default or could constitute an Event of Default such notice must be sent within 5 Business Days, after learning that no Registration Statement is effective. Such notice or after must be sent by fax if possible to any securities depositary that is a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;registered holder.
(Cj) it It will not contract use its reasonable efforts to maintain the Registration Statement continuously effective under the 1933 Act.
(k) If, in the opinion of outside counsel, any indebtedness for borrowed moneyinstrument is required to be filed with, without or any permission, order or ruling is required to be obtained from any securities administrator, regulatory agency or governmental authority in Canada or the consent United States or any other step is required under any federal or provincial law of Canada or any federal or state law of the Majority Lenders United States before the Underlying Securities may be issued or delivered to a Warrantholder, the Company will use its reasonable efforts to file such instrument, obtain such permission, order or ruling or take all such other actions, at its expense, as are required.
(l) It will perform all its covenants and carry out all of the acts or things to be done by it as provided in this Indenture. The Company and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance Trustee acknowledge and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
agree that: (i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent none of the Majority Lenders foregoing covenants shall be interpreted or applied so as to prohibit or restrict or otherwise limit the Company's ability, right and the Majority Banks, authority to implement one or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date more of the principal of said loan is subsequent to the Final Maturity Dateactions contemplated by Section 2.13 or 7.2; or
and (ii) the payment of all amounts then due in connection foregoing covenants shall be interpreted and applied following each such action with said indebtedness (including prepayment) is, by its terms, subordinated reference to any successor to the prior payment of all amounts then due Company and payable with reference to any securities into which the Lenders under Common Shares and/or the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case Warrants may be (with the exception of those amounts set forth in subparagraph (d) above) and changed or for which they may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision exercisable as a result of the normal activity of EDL Hotels such action or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementactions.
Appears in 1 contract
General Covenants. EDL Hotels The Corporation represents, warrants and each of covenants with the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence Warrant Agent that so long as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanWarrant remains outstanding:
(a) indebtedness for borrowed money granted the Corporation is duly authorized to create and issue both the Borrowers under Series I Warrants and the AgreementSeries II Warrants and that the Series I Warrant Certificates and the Series II Warrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against the Corporation;
(b) indebtedness for borrowed money granted by another Borrowerthe Corporation will at all times maintain its corporate existence and keep or cause to be kept proper books of account in accordance with generally accepted accounting practice;
(c) those granted the Corporation will reserve for the purpose and keep available sufficient unissued Common Shares to enable it under to satisfy its obligations on the Credit Agreementexercise of the both the Series I Warrants and the Series II Warrants;
(d) indebtedness for borrowed money which is granted the Corporation will cause the Common Shares issued pursuant to it to finance and simultaneously repay the total amount exercise of the loans Warrants, and the Tranche C Advances; orcertificates representing such Common Shares, to be duly issued and delivered in accordance with the terms hereof;
(e) indebtedness for borrowed money all Common Shares that are issued or created on exercise of the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money Warrants will be considered subordinated fully paid and non-assessable;
(f) the Corporation will not take any action or omit to take any action that would reasonably be expected to have the Loans effect of preventing the Warrantholders from exercising any of the Warrants or receiving any of the Common Shares upon such exercise provided that the Corporation is not precluded from taking any action or omitting to take any action that may effect whether an Exercise Date occurs;
(g) the Corporation will perform and Advances when:carry out all acts and things to be done by it as provided in this Series I and Series II Warrant Indenture and, subject to Section 4.6, will not take any action that might reasonably be expected to deprive the Warrantholders of their rights to acquire Common Shares upon the exercise of the Warrants provided that the Corporation is not precluded from taking any action or omitting to take any action that may effect whether an Exercise Date occurs;
(h) subject to Section 4.6, the Corporation will make all requisite filings in connection with the exercise of the Warrants and issuance of the Common Shares; and
(i) the payment of all amounts due under such indebtedness Corporation will use reasonable best efforts to maintain its status as a reporting issuer (including prepaymentor the equivalent) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent in default in each of the Majority Lenders Qualifying Jurisdictions providing for such a regime and will use reasonable best efforts to maintain the listing of the Common Shares and the Majority Banks, or (b) Series I Warrants and the repayment terms of said loan depend Series II Warrants on the existence TSX. For greater certainty, using reasonable best efforts to maintain the listing of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in Common Shares, the absence of such cash, Series I Warrants and the repayment date Series II Warrants shall not preclude the Directors from approving or recommending a transaction which may result in a Change of Control that causes the de-listing of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) isCommon Shares and/or Series I Warrants and/or Series II Warrants provided that, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect transaction gives rise to equipment necessary for the construction or operation a Change of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros Control that both (€1,500,000);
(Ex) it will not grant nor suffer is subject to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (cSection 4.7(2) and (dy) above, affecting an asset or a right which is causes the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted Common Shares to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in questiondelisted, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except Corporation elects in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or completion of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels transaction to purchase for cancellation or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or cancel and exchange all unexercised Warrants in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply accordance with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementSection 4.7(2).
Appears in 1 contract
General Covenants. EDL Hotels VGZ and each the Guarantor covenant with the Trustee that so long as any of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanNotes remain outstanding:
(a) indebtedness for borrowed money granted VGZ will well, duly and punctually pay or cause to be paid to every Noteholder, or to the Borrowers under Trustee on behalf of every Noteholder, all principal thereof and accrued interest, if any, on the AgreementNotes, at the dates and places, in the currency and in the manner mentioned herein and in the Notes;
(b) indebtedness for borrowed money granted by another Borrowereach of VGZ and the Guarantor will carry on and conduct, and will cause to be carried on and conducted, its business in a proper and efficient manner and do or cause to be done all things necessary to preserve and keep in full force and effect its existence and all consents, rights, franchises, licences, approvals, permits and qualifications necessary to own their respective properties and assets and perform their respective obligations under this Indenture; but VGZ and the Guarantor may not cease to operate or dispose of all or substantially all of its undertaking or assets, except in accordance with Article 9, and VGZ will keep or cause to be kept proper books of account, and will forthwith file with the Trustee copies of all annual and periodic reports of VGZ furnished to its shareholders after the date hereof, and at all reasonable times it will furnish or cause to be furnished to the Trustee or its duly authorized agent or attorney such information relating to its business as the Trustee may reasonably require;
(c) those granted each of VGZ and the Guarantor will provide, or cause to it under be provided, prompt notice in writing to the Credit AgreementTrustee of any Default or Event of Default;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount each of the loans VGZ and the Tranche C AdvancesGuarantor shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all taxes, assessments and governmental charges levied or imposed upon its or its Subsidiaries’ income, profits or property and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law
become a Lien upon its property; orprovided that VGZ and the Guarantor shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate negotiations or proceedings and for which disputed amounts any reserves required in accordance with GAAP have been made;
(e) indebtedness for borrowed money each of VGZ and the interest payments Guarantor shall, and repayment shall cause each of principal of which are subordinated its Subsidiaries to, at all times cause all properties used and material to the Loans operations of its business to be maintained and Advances; kept in good condition, repair and working order in accordance with industry standards (reasonable wear and tear excepted) and supplied with all necessary equipment required for the purposes operations of this paragraphits business consistent with industry standards and past practice and given the stage and status of the relevant operations, indebtedness and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereto consistent with industry standards and past practice and given the stage and status of the relevant operations;
(f) each of VGZ and the Guarantor shall maintain insurance in such amounts and covering such risks as are usually and customarily carried with respect to similar facilities according to their respective locations;
(g) each of VGZ and the Guarantor will use or cause to be used the proceeds of the Notes exclusively at the Paredones Amarillos project in Mexico (including, without limitation, the purchase of equipment for borrowed money such project and US$12 million which may be retained by VGZ to reimburse VGZ for payments previously mad by VGZ in respect of the purchase of equipment for the Paredones Amarillos project in Mexico);
(h) VGZ will be considered subordinated annually, within 140 days of the end of each fiscal year of VGZ, deliver to the Loans Trustee (i) an Officer’s Certificate confirming that it has complied with all requirements contained in this Indenture that, if not complied with, would, with the giving of notice, lapse of time or otherwise, constitute an Event of Default, or, if there has been any failure to comply, giving particulars thereof and Advances when:(ii) audited consolidated financial statements for the previous fiscal year;
(i) the payment each of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders VGZ and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as Guarantor shall not complete an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterAsset Disposition; and
(cj) in generally, VGZ and the case of EDL Hotels or of any BorrowerGuarantor will well, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each duly and punctually perform and carry out all of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used acts or things to finance the transferred assets have been paid (increased be done by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementthis Indenture.
Appears in 1 contract
General Covenants. EDL Hotels (a) The Corporation covenants with the Subscription Receipt Agent and Agent, that so long as any Subscription Receipts remain outstanding:
(i) it will use its reasonable best efforts to maintain its existence;
(ii) it will make all requisite filings under applicable Canadian and United States securities legislation including those necessary to remain a reporting issuer not in material default in each of the Borrowers covenant and agreeprovinces of Canada in which it is presently a reporting issuer;
(iii) it will announce by press release the occurrence of the Arrangement Closing Date or the Termination Date, until all as the loans made by case may be, in accordance with Section 3.1 or Section 3.3(a), as the Lenders under the Agreement are repaid in full and case may be;
(iv) it will use its best efforts to carry out all of the acts or things to be done by it as provided in this Agreement;
(v) prior to the earlier of the Arrangement Closing Date and the Termination Date, it will not sell the properties or assets of the Corporation as, or substantially as, an entirety, to any other entity;
(vi) it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations arising to issue Common Shares pursuant to the Subscription Receipts;
(vii) it will cause the Common Shares and the certificates representing the Common Shares from time to time acquired pursuant to the Subscription Receipts to be duly issued as fully paid and non-assessable shares and delivered in accordance with the Subscription Receipts and the terms hereof;
(viii) it will use its best efforts to ensure that (until the earlier of the Arrangement Closing Time and the Termination Date) the Common Shares continue to be listed and posted for said Borrower hereunder are performedtrading on the TSXV and NASDAQ; and
(ix) with respect to any notices to be given or other acts to be performed or which may be given or performed by the Agent under or pursuant to this Agreement (including the notice contemplated by Section 3.1), it shall provide to the Agent, in a timely manner all such information and documents as the Agent may reasonably request and is within the knowledge or control of the Corporation in order to verify the factual circumstances relating to such notices or acts and, if requested, such information shall be certified correct by the Corporation.
(b) The Corporation further covenants with the Subscription Receipt Agent and the Agent, that, from the date hereof to the earlier of the Termination Date and the Arrangement Closing Date, it will not do any of the following:
(i) subdivide or redivide the outstanding Common Shares into a greater number of common shares;
(ii) other than the Consolidation, reduce, combine or consolidate the outstanding Common Shares into a smaller number of common shares;
(iii) issue Common Shares to holders of all or substantially all of the outstanding Common Shares by way of a dividend;
(iv) fix a record date for the making of a dividend to all or substantially all the holders of its outstanding Common Shares of:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Accountshares of any class other than Common Shares, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;or
(B) it will give notice to the Lenders’ Agentrights, promptly upon the occurrence thereof, of any event which constitutes an Event of Default options or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advanceswarrants; or
(ev) indebtedness for borrowed money other than the interest payments and repayment of principal of which are subordinated to Arrangement, reclassify the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent Common Shares or undertake a reorganization of the Majority Lenders and the Majority BanksCorporation or a consolidation, amalgamation, arrangement or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date merger of the principal of said loan is subsequent to the Final Maturity DateCorporation with any other Person or other entity; or
(iivi) a sale or conveyance of the payment property and assets of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower Corporation as an authorized loan pursuant entirety or substantially as an entirety to this Paragraph (C) will be paid into the SCA Loan Account any other Person or the SNC Loan Accountentity or a liquidation, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) dissolution or to finance the construction and operation winding-up of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementCorporation.
Appears in 1 contract
Samples: Subscription Receipt Agreement (Engine Gaming & Media, Inc.)
General Covenants. EDL Hotels AltaRex represents, warrants, covenants and each agrees with the Trustee for the benefit of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders Trustee and the Majority Banks, other thanSpecial Warrantholders that so long as any Special Warrant remains outstanding and may be exercised:
(a) indebtedness for borrowed money granted AltaRex is duly authorized to create and issue the Borrowers under Special Warrants and the AgreementSpecial Warrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against AltaRex;
(b) indebtedness for borrowed money granted by another BorrowerAltaRex will at all times maintain its corporate existence, carry on and conduct its business in a proper and business-like manner, keep or cause to be kept proper books of account in accordance with generally accepted accounting practice and AltaRex will send to Special Warrantholders copies of all financial statements furnished to its shareholders during the term of this Indenture;
(c) those granted AltaRex will reserve for the purpose and will conditionally allot out of its authorized capital that number of Common Shares to enable it under to satisfy its obligations on the Credit Agreementexercise or deemed exercise of the Special Warrants;
(d) indebtedness for borrowed money which is granted AltaRex will cause the Common Shares to it be issued from time to finance and simultaneously repay time pursuant to the total amount exercise or deemed exercise of the loans Special Warrants, and the Tranche C Advances; orcertificates representing such Common Shares to be duly issued and delivered in accordance with the Special Warrants and the terms hereof;
(e) indebtedness for borrowed money all Common Shares that are issued or created on due exercise or deemed exercise of the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money Special Warrants will be considered subordinated fully paid and non-assessable;
(f) AltaRex will cause the Trustee to keep open on business days the Loans registers of holders and Advances when:registers of transfers referred to in Section 3.1 and will not take any action or omit to take any action which would have the effect of preventing the Special Warrantholders from exercising any of the Special Warrants or receiving any of the Common Shares upon such exercise;
(h) generally, AltaRex will well and truly perform and carry out all acts and things to be done by it as provided in this Indenture and will not take any action which might reasonably be expected to deprive the Special Warrantholders of their rights to acquire Common Shares upon the exercise of the Special Warrants;
(i) AltaRex will prepare, in conformity with the payment requirements of all amounts due under such indebtedness (including prepayment) isApplicable Legislation in all material respects, by and file the Preliminary Prospectus with the Securities Commissions as soon as possible, but in no event later than the Filing Deadline, and shall use its terms, subordinated commercially reasonably efforts to obtain receipts therefor from the prior payment of all amounts then due and payable Securities Commission as soon as commercially practicable thereafter. AltaRex will use its commercially reasonable efforts to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent resolve as soon as commercially practicable any regulatory deficiencies in respect of the Majority Lenders Preliminary Prospectus. As soon as possible after such deficiencies have been resolved and/or satisfied, AltaRex will prepare and file in conformity with the Majority Banksrequirements of Applicable Legislation, or (b) in all material respects, the repayment terms of said loan depend on Final Prospectus with the existence of available cash after servicing Securities Commissions. AltaRex will use its commercially reasonable efforts to obtain receipts therefor from the Unsubordinated Indebtedness and no repayment is due in Securities Commissions as soon as commercially practicable thereafter, qualifying the absence of such cash, and the repayment date distribution of the principal Common Shares issuable on exercise of said loan is subsequent to the Final Maturity Date; or
(ii) Special Warrants in each of the payment of Qualifying Jurisdictions and shall provide the Special Warrantholders with all amounts then due documents customarily provided in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights distribution under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementprospectus.
Appears in 1 contract
General Covenants. EDL Hotels The Company shall:
a. furnish M&K from time to time at M&K's written request written statements and each schedules further identifying and describing the Collateral in such detail as M&K may reasonably require;
b. advise M&K promptly, in sufficient detail, of any substantial change in the Collateral, and of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes would have an Event adverse effect on the value of Default the Collateral or could constitute an Event on M&K's security interest therein; and
c. promptly execute and deliver to M&K such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as M&K may from time to time in its reasonable discretion deem necessary to perfect, protect or enforce its security interest in the Collateral or otherwise to effectuate the intent of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, this Security Agreement and will state the facts pertaining to such event;Note.
(C) it d. The Company will not contract assign, transfer, sell, lease or otherwise dispose of or abandon any indebtedness for borrowed moneyCollateral, without the consent nor will The Company suffer or permit any of the Majority Lenders and the Majority Banks, other than:
(a) indebtedness for borrowed money granted same to the Borrowers under the Agreement;
(b) indebtedness for borrowed money granted by another Borrower;
(c) those granted to it under the Credit Agreement;
(d) indebtedness for borrowed money which is granted to it to finance and simultaneously repay the total amount of the loans and the Tranche C Advances; or
(e) indebtedness for borrowed money the interest payments and repayment of principal of which are subordinated to the Loans and Advances; for the purposes of this paragraph, indebtedness for borrowed money will be considered subordinated to the Loans and Advances when:
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely in the event that EDL Hotels concludes such agreements occur with respect to equipment necessary any Collateral, without prior written notice to and consent of Secured Party, except for the construction sale or operation lease from time to time in the ordinary course of business of such items of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000)Collateral as may constitute inventory;
(E) it e. The Company will not grant nor suffer to exist any lien on use the Collateral for lawful purposes only, with all or part of its assets or revenues other than:
(a) liens described reasonable care and caution and in Article 17 (Guarantee – Security Interests) of the Agreement conformity with all applicable laws, ordinances and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liensregulations;
(c) liens granted f. The Company will pay M&K for any reasonable and necessary sums, costs, and expenses which M&K may pay or incur pursuant to the normal activity provisions of EDL Hotels this Agreement or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels negotiating, executing, perfecting, amending, defending, protecting or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ enforcing this Agreement or the Borrower’s most recent certified balance sheet; or
(d) liens security interest granted to creditors which have a debt subordinated to that herein or in enforcing payment of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafter; and
(c) in the case of EDL Hotels or of any Borrower, participating in a partial asset contribution, or selling, renting, Obligations or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation provisions hereof, including but not limited to court costs, collection charges, travel expenses, and reasonable attorneys fees, all of which, together with interest at the highest rate then payable on any of the Phase IB InstallationsObligations, shall be part of the Obligations and be payable on demand;
(H) g. in its discretion, M&K may, at any time and from time to ensure time, with prior written notice to the Company, assign, transfer or deliver to any transferee of any Obligations, any Collateral, whereupon M&K shall be fully discharged from all responsibility and the transferee shall be vested with all powers and rights of M&K hereunder with respect thereto, but M&K shall retain all rights and powers with respect to any Collateral not assigned, transferred or delivered;
h. The Company has made, and will continue to make, payment or deposit, or otherwise has provided and will provide for the payment, when due, of all taxes, assessments or contributions or other public or private charges which have been or may be levied or assessed against the Company, whether with respect to any Collateral, to any wages or salaries paid by the Company, or otherwise, and will deliver to Secured Party, on demand, certificates or other evidence satisfactory to M&K attesting thereto, provided, however, that no agreement is entered into the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with a third party if respect to any such agreement contains provisions contemplating tax, assessment, charge, levy or claim so contested;
i. Upon prior written notice to the set-off Company, M&K shall at all times have free access to and right of amounts due to it for a cumulative amount in excess of five per cent (5%) inspection of the net assets of EDL Hotels Collateral and any records pertaining thereto (and the right to make extracts from and to receive from the Company originals or true copies of such Borrower, records and any papers and instruments relating to any Collateral upon request therefor); and
j. The Company shall not incur any indebtedness senior to that evidenced by the Note and the Company shall not increase the amount of any Senior Indebtedness (as such net assets appear on term is defined in the most recent certified balance sheet Note), in either event without the prior written consent of EDL Hotels or M & K; provided, however, that the foregoing shall not require the approval of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible M&K for the performance of Company to incur any commitment whatsoever"floor plan" or similar financing, other than as provided herein or in which shall be expressly permitted to be incurred by the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common AgreementCompany.
Appears in 1 contract
Samples: Security and Pledge Agreement (Major Automotive Companies Inc)
General Covenants. EDL Hotels The Borrower covenants and each of the Borrowers covenant and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) agrees that it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanshall:
(a) indebtedness for borrowed money granted from time to time at the Borrowers under Agent's request, furnish the AgreementAgent with written statements and schedules further identifying and describing the Collateral in such detail as the Agent may reasonably require;
(b) indebtedness for borrowed money granted by another Borroweradvise the Agent promptly, in sufficient detail, of any material adverse change in the Collateral, and of the occurrence of any event which would be reasonably likely to have a material adverse effect on the value of the Collateral or on the Agent's Encumbrance and security interest thereon;
(c) those granted comply or, with respect to it under the Credit AgreementCollateral, cause the obligors thereof to comply, with all acts, rules, regulations and orders of any legislative, administrative or judicial body or official applicable to the Collateral or any part thereof or to the operation of the Borrower's business;
(d) indebtedness at all times use, or cause the obligors to use, the Collateral for borrowed money which is granted to it to finance lawful purposes only, with all reasonable care and simultaneously repay the total amount of the loans and the Tranche C Advances; orcaution;
(e) indebtedness for borrowed money cause the Encumbrance and security interests granted pursuant to this Agreement to be at all times (except as permitted under Section 3(c) hereof) a first priority duly perfected Encumbrance and security interest payments upon the Collateral, subject to no Encumbrances other than Permitted Liens;
(f) promptly execute and repayment of principal of which are subordinated deliver to the Loans Agent, such further assignments, security agreements or other instruments, documents, certificates and Advances; for assurances and take such further action as the purposes Agent may from time to time in its reasonable discretion deem necessary to perfect, protect or enforce its Encumbrance and security interest on the Collateral or otherwise to effectuate the intent of this paragraphAgreement, indebtedness for borrowed money will be considered subordinated including, without limitation, the right of the Agent upon the occurrence of, and during the continuance of, an Event of Default to the Loans and Advances when:
(i) take possession of the payment Collateral and without liability for trespass to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral, upon notice to the Borrower, as to any or all amounts due under such indebtedness (including prepayment) isof the Collateral, by its termsany available judicial procedure, subordinated or without judicial process (to the prior payment extent it is permissible to do so in view of all amounts then due the rights of lessees or other obligors who may have the right to possession of the Equipment), and, in connection therewith, the Borrower shall, upon request of the Agent and payable at the Borrower's expense, assemble the Collateral and make it available to the Lenders under Agent at the Agreement and to Borrower's principal office or principal warehouse or such other locations as the Banks under the Credit Agreement, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cashAgent shall designate, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) require the payment of all amounts then due in connection with said indebtedness Borrower to, and upon such demand the Borrower shall (including prepaymentA) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders cause each obligor under the Agreement Contracts to make all Contract Payments directly to, in the Agent's sole discretion, either the Agent or to a post office box designated by the Agent to which only the Agent shall have access, (B) if the Borrower shall receive any Contract Payment or any other payment relating to Equipment (including, without limitation, any proceeds of insurance with respect to Equipment), hold such payment in trust by the Borrower for the benefit of the Agent and to shall not commingle such payment with any other moneys or assets of the Banks under the Credit AgreementBorrower, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will promptly turn over and remit to the Agent all sums thus received, in the identical form as received, with all such endorsements thereof as may be paid into the SCA Loan Account or the SNC Loan Accountrequired, as the case may be (with the exception of those amounts set forth in subparagraph (d) above) and may only be used for the repayment set forth in subparagraph (d) or to finance the construction and operation of the Phase IB Assets;
(D) it will not contract any agreement as tenant under any lease agreement or financial lease whatsoever, except solely contemplated by Section 8 hereof; in the event that EDL Hotels concludes such agreements with respect the Borrower shall fail to equipment necessary for notify the construction obligors to make payments to the Agent or operation to a post office designated by it, the Agent shall be entitled to do so, either in the name of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity its power of EDL Hotels or of such Borrower as security for an overall amount not attorney in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, Section 11 hereof and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case Assignment of EDL HotelsLeases, merging with any entity, except or in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterits own name; and
(cg) perform and observe all covenants, restrictions and conditions contained in the case Loan Agreement providing for payment of EDL Hotels or taxes, maintenance of any Borrower, participating in a partial asset contribution, or selling, renting, or insurance and otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders and Majority Banks, and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used to finance the transferred assets have been paid (increased by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata relating to the amount of the Borrowers’ Loans repaid Collateral as compared to the aggregate amount of the Borrowers Loans andthough such covenants, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof restrictions and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages conditions were fully set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common this Agreement.
Appears in 1 contract
General Covenants. EDL Hotels Crystallex represents, warrants, covenants and each of agrees to and with the Borrowers covenant Warrant Agent that, so long as any Warrant remains outstanding and agree, until all the loans made by the Lenders under the Agreement are repaid in full and all of the other obligations arising for said Borrower hereunder are performed, that:
(A) it will use the amounts withdrawn from the SCA Loan Account or the SNC Loan Account only to credit a Designated Account, and will not use the Agreement nor refer to its existence as a guarantee in order to obtain any other credit facility or financing, regardless of the purpose of such credit facility or financing;
(B) it will give notice to the Lenders’ Agent, promptly upon the occurrence thereof, of any event which constitutes an Event of Default or could constitute an Event of Default after notice or after a time period provided for in Article 13 (Events of default) has elapsed, and will state the facts pertaining to such event;
(C) it will not contract any indebtedness for borrowed money, without the consent of the Majority Lenders and the Majority Banks, other thanmay be exercised:
(a) indebtedness for borrowed money granted Crystallex is duly authorized to create and issue the Borrowers under Warrants and that the AgreementWarrant Certificates, when issued and countersigned as herein provided, will be valid and enforceable against Crystallex;
(b) indebtedness for borrowed money granted by another BorrowerCrystallex will at all times maintain its corporate existence, carry on and conduct its business in a proper and business-like manner, keep or cause to be kept proper books of account in accordance with generally accepted accounting practice and Crystallex will send to Warrantholders copies of all financial statements furnished to its shareholders during the term of this Indenture;
(c) those granted Crystallex will continue, and will cause each of its subsidiaries to it under continue, to engage in business of the Credit Agreementsame general type as now conducted by Crystallex and its subsidiaries, and will preserve, renew and keep in full force and effect its respective corporate existence and their respective material rights, privileges and franchises necessary or desirable in the normal conduct of business;
(d) indebtedness for borrowed money which is granted Crystallex and each of its subsidiaries will not, in a single transaction or a series of related transactions, (i) consolidate with or merge with or into any other person, or (ii) permit any other person to it to finance and simultaneously repay consolidate with or merge into it, unless (x) either (A) Crystallex shall be the total amount survivor of such merger or consolidation or (B) the surviving person shall expressly assume by supplemental agreement all of the loans obligations of Crystallex under the Subscription Agreement, this Indenture and the Tranche C AdvancesNote Indenture; or(y) if Crystallex is not the surviving entity, such surviving entity's common shares shall be listed on either The New York Stock Exchange, AMEX, Nasdaq National Market or TSX and (z) Crystallex has delivered to the Warrantholders an officers' certificate and opinion of counsel, each stating that such consolidation, merger or transfer complies with this Indenture, that the surviving person agrees to be bound thereby and that all conditions precedent in this Indenture relating to such transaction have been satisfied;
(e) indebtedness Crystallex will reserve for borrowed money the interest payments purpose and repayment keep available sufficient unissued or created Common Shares to enable it to satisfy its obligations on the exercise of principal of which are subordinated the Warrants and will issue and deliver such shares in accordance with the provisions hereof;
(f) Crystallex will cause the Common Shares from time to time issued pursuant to the Loans exercise of the Warrants, and Advances; for the purposes certificates representing such Common Shares, to be duly issued and delivered in accordance with the Warrants and the terms hereof;
(g) all Common Shares that are issued or created on exercise of this paragraph, indebtedness for borrowed money the Warrants will be considered subordinated fully paid and non-assessable;
(h) Crystallex will cause the Warrant Agent to keep open on business days the Loans registers of holders and Advances when:registers of transfers referred to in subsection 3.1 and will not take any action or omit to take any action which would have the effect of preventing the Warrantholders from exercising any of the Warrants or receiving any of the Common Shares upon such exercise;
(i) the payment of all amounts due under such indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders Crystallex is a "reporting issuer" not in default under the Agreement securities legislation of each of Ontario, British Columbia, Alberta and to the Banks under the Credit AgreementNova Scotia and, and: either (a) the lenders making the loan corresponding to such indebtedness do not have the opportunity to accelerate the amounts due to them under such indebtedness without the prior consent of the Majority Lenders and the Majority Banks, or (b) the repayment terms of said loan depend on the existence of available cash after servicing the Unsubordinated Indebtedness and no repayment is due in the absence of such cash, and the repayment date of the principal of said loan is subsequent to the Final Maturity Date; or
(ii) the payment of all amounts then due in connection with said indebtedness (including prepayment) is, by its terms, subordinated to the prior payment of all amounts then due and payable to the Lenders under the Agreement and to the Banks under the Credit Agreement, and the Borrowers deliver to the Lenders’ Agent and the Financial Agent a certificate of EDL Hotels reviewed by the Expert establishing that the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio, calculated by taking into account the payment obligations related to such subordinated indebtedness, are equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date; any amount made available to EDL Hotels and a Borrower as an authorized loan pursuant to this Paragraph (C) will be paid into the SCA Loan Account or the SNC Loan Account, as the case may be (with the exception of those amounts set forth the Company's most recently filed Form 20-F, has timely filed all forms and reports under the Exchange Act required to be filed by it since it has become subject to the periodic reporting requirements thereunder and there is no material change in subparagraph (d) above) the affairs of Crystallex which presently requires disclosure under applicable securities laws which has not been so disclosed and may only be used for no such disclosure has been made on a confidential basis since March 31, 2003 which has not subsequently been disclosed. Crystallex covenants and agrees to use its reasonable best efforts to ensure that it remains a reporting issuer in good standing under the repayment set forth securities legislation in subparagraph (d) or to finance Ontario until the construction and operation of the Phase IB AssetsExpiry Time;
(Dj) it Crystallex will not contract any agreement as tenant under any lease agreement or financial lease whatsoevermake all requisite filings, except solely including filings with the Ontario Securities Commission and the SEC, in connection with the event that EDL Hotels concludes such agreements with respect to equipment necessary for the construction or operation issuance and exercise of the Phase IB Installations, for an annual aggregate pre-tax rental amount not in excess of one million five hundred thousand euros (€1,500,000);
(E) it will not grant nor suffer to exist any lien on all or part of its assets or revenues other than:
(a) liens described in Article 17 (Guarantee – Security Interests) Warrants and issue of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement; or
(b) liens arising by operation of law or from a judicial decision as a result of the normal activity of EDL Hotels or of such Borrower, provided that such liens do not result from the failure of EDL Hotels or of such Borrower to comply with its obligations, that a request for the release of such liens is made promptly by EDL Hotels or such Borrower before a competent court and that EDL Hotels or such Borrower pursues the proceedings with diligence in order to obtain the cancellation or release of such liens;
(c) liens granted pursuant to the normal activity of EDL Hotels or of such Borrower as security for an overall amount not in excess of five per cent (5%) of EDL Hotels or of such Borrower’s net assets, as such net assets appear in EDL Hotels’ or the Borrower’s most recent certified balance sheet; or
(d) liens granted to creditors which have a debt subordinated to that of the Lenders under the Agreement or to that of the Banks under the Credit Agreement or security interests granted to secure the subordinated indebtedness intended to replace the loan granted under the EDL-SCA Loan Undertaking; provided that (1) notwithstanding the foregoing, EDL Hotels may not grant a mortgage over the Phase IB lands or pledge its business (“fonds de commerce”) without granting the same security to the Lenders pari passu to secure the amounts outstanding under the Agreement, and (2) all the liens referred to in subparagraphs (c) and (d) above, affecting an asset or a right which is the subject matter of one of the security interests described in Article 17 (Guarantee – Security Interests) will have a lower priority and will not compete with the security interests granted to the Lenders and the Banks as set forth in Article 17 (Guarantee – Security Interests) of the Agreement and Article 17 (Guarantee – Security Interests) of the Credit Agreement;
(F) to take all necessary steps to maintain its legal existence and, without limiting the foregoing, to refrain from the following, unless with the prior consent of the Majority Lenders and the Majority Banks:
(a) filing a request or demand or adopting a resolution to dissolve or, in a Borrower’s case, to participate in a merger;
(b) in the case of EDL Hotels, merging with any entity, except in the framework of the construction or operation of the Phase IB Installations and provided that EDL Hotels will be the surviving entity after such merger, subject to the conditions set forth hereinafterCommon Shares thereunder; and
(ck) in the case of EDL Hotels or of any Borrowergenerally, participating in a partial asset contribution, or selling, renting, or otherwise disposing of any significant part of its assets; each of the transactions described in subparagraphs (b) Crystallex will well and (c) hereinabove may nevertheless occur without the prior consent of the Majority Lenders truly perform and Majority Banks, carry out all acts and under normal commercial conditions, provided that (i) the Borrowers’ Loans and Advances used things to finance the transferred assets have been paid (increased be done by interest provided for in Article 5.2 (B)(2) of the Agreement). Any such repayment must be accompanied by a simultaneous repayment of EDL Hotels’ Loans for an amount pro rata to the amount of the Borrowers’ Loans repaid as compared to the aggregate amount of the Borrowers Loans and, if necessary, in order to comply with the ratios described hereinafter, repayment of a portion of the additional Loans or Advances, (ii) EDL Hotels has purchased or has had purchased the shares of the Borrower in question at the nominal value thereof and (iii) EDL Hotels has provided to the Lenders’ Agent and the Financial Agent a certificate reviewed by the Expert, substantially in the form of the model attached as Schedule VII to the Agreement evidencing that, after the completion of the transaction in question, the Unsubordinated Indebtedness Debt Coverage Ratio and the Unsubordinated Indebtedness Annual Debt Coverage Ratio will be equal to or greater than 1.50 and 1.15, respectively, until the Final Maturity Date. Said additional repayments of the Loans and the Advances will be made on a pro rata basis, unless Lenders whose participations in the Tranche B Advances represent at least sixty percent (60%) of the Tranche B Advances have agreed that the additional repayment under the Tranche B Advances will not occur or will occur in a proportion less than the one resulting from the aforementioned pro rata basis. For the purposes of this paragraph, the following will constitute a transfer by EDL Hotels or a Borrower of “a significant part of its assets”:
(i) any sale or contribution by EDL Hotels to a third party of all or part of the business (“fonds de commerce”) concerning one of the Phase IB Installations; and
(ii) any sale or contribution by the Borrowers to a third party or the consent by one of the Borrowers to the transfer by EDL Hotels to a third party of its rights under a Credit-Bail Agreement or, with respect to an Borrower, of the ownership of the physical structure (“murs”) of one of the Phase IB Installations or of its rights under its Construction Lease Agreement;
(G) not to create any subsidiary nor to acquire any participation in any entity or company except in connection with the construction or operation of the Phase IB Installations;
(H) to ensure that no agreement is entered into with a third party if such agreement contains provisions contemplating the set-off of amounts due to it for a cumulative amount in excess of five per cent (5%) of the net assets of EDL Hotels or of such Borrower, as such net assets appear on the most recent certified balance sheet of EDL Hotels or of such Borrower;
(I) not to enter into any agreement pursuant to which it acts as guarantor or co-debtor, or becomes responsible for the performance of any commitment whatsoever, other than as provided herein or in the Phase IB Documents;
(J) to immediately inform the Security Agent in the event that it becomes aware of any mortgage which has been completed or which may be completed prior to the mortgages set forth in Article 17.2(a);
(K) to comply with the provisions of paragraphs 2 “Financial Covenants”, 3 “Investment”, 4 ”Other Indebtedness”, 5 “Market Transactions” of the Covenants, it being noted that the authorizations or waivers that must be granted to the Borrowers pursuant to the said paragraphs will be granted in accordance with provisions of article 3 of the Common Agreementthis Indenture.
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