Other Covenants and Agreements (a) The Shareholder hereby agrees that, notwithstanding anything to the contrary in any such agreement, with respect to each such agreement to which the Shareholder is a party (i) each of the agreements set forth on Schedule B hereto shall be automatically terminated and of no further force and effect (including any provisions of any such agreement that, by its terms, survive such termination) effective as of, and subject to and conditioned upon the occurrence of, the Closing and (ii) upon such termination none of the Shareholder, the Company nor any of their respective Affiliates (including, from and after the Effective Time, Parent and its Affiliates) shall have any further obligations or liabilities under each such agreement. Without limiting the generality of the foregoing, each of the Parties hereby agrees to promptly execute and deliver all additional agreements, documents and instruments and take, or cause to be taken, all actions necessary or reasonably advisable in order to achieve the purpose of the preceding sentence.
(b) The Shareholder shall be bound by and subject to (i) Section 6.4(a) and (b) (Confidentiality; Public Announcements) of the Merger Agreement to the same extent as such provisions apply to the parties to the Merger Agreement, as if the Shareholder is directly party thereto; provided that, the foregoing shall bind and subject the Shareholder only to the confidentiality and non-use obligations of the Confidentiality Agreement (as defined in the Merger Agreement), and shall not bind nor subject the Shareholder to any other provisions thereof; provided further that, notwithstanding Section 6.4(b) of the Merger Agreement, the Shareholder shall be permitted to make a public announcement to the extent that such announcement is required by applicable stock exchange rule, (ii) the first sentence of Section 6.10(a) (No Solicitation) of the Merger Agreement and (iii) Section 6.7 (No Claim Against Trust Account) of the Merger Agreement to the same extent as such provisions apply to the Company, in each case, mutatis mutandis, as if the Shareholder is directly party thereto. Notwithstanding anything in this Agreement to the contrary, (x) the Shareholder shall not be responsible for the actions of the Company or the board of directors of the Company (or any committee thereof) or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (the “Company Related Parties”), including with respect to any of the matters contemplated by this Section 2(b) (y) the Shareholder is not making any representations or warranties with respect to the actions of any of the Company Related Parties, and (z) any breach by the Company of its obligations under the Merger Agreement shall not be considered a breach of this Section 2(b) (it being understood for the avoidance of doubt that the Shareholder shall remain responsible for any breach by it of this Section 2(b)).
(c) The Shareholder acknowledges and agrees that Parent and the other Parent Parties are entering into the Merger Agreement in reliance upon the Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and but for the Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, Parent and Merger Sub would not have entered into or agreed to consummate the transactions contemplated by the Merger Agreement.
(d) The Shareholder hereby waives any rights of appraisal, including under Section 262 of the DGCL, or any other rights to dissent from the Merger that the Shareholder may have under applicable Legal Requirements.
(e) At or prior to the Closing, the Shareholder shall duly execute and deliver to the Company and Parent the Eighth Amended and Restated Investor Rights Agreement of the Company, dated as of the date hereof, by and among the Company, the Shareholder and the other parties thereto substantially in the form attached hereto as Exhibit A.
Warranties and Covenants Assignor warrants and represents to Assignee and Company as of the date hereof:
Covenants and Undertakings 8.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify the Lender in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and the amount of contingent liability, if such amount is ascertainable;
(j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Event of Default immediately upon becoming aware of it.
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
Representations, Warranties, Covenants and Agreements The representations and warranties contained in the Loan Documents are and shall be true and correct in all respects, and all covenants and agreements have been complied with and shall be correct in all respects, and all covenants and agreements to have been complied with and performed by Borrower shall have been fully complied with and performed to the satisfaction of Agent.
REPRESENTATION, WARRANTIES AND COVENANTS 1. The Borrower hereby represents, warrants, covenants to the Lender as follows:
a. That the Borrower is an adult and competent in law to enter into this Agreement and is not subject to any insolvency or bankruptcy proceedings.
b. This Agreement constitutes legal, valid, and binding obligations on the Borrower, enforceable in its entirety and there are no claims against the Borrower.
c. The Borrower shall comply with the terms of this Agreement including making timely payment of the EMI and ensure that the Repayment Instrument(s) are honored on presentation. It is the duty of the Borrower to ensure that his/her bank account has been debited towards the EMI and in case of his/her account not being so debited, the Borrower shall be obliged to inform the Lender in this regard within 2 days from the due date of such EMI.
d. That the information given in the Borrower's Mode of Application and any prior or subsequent information given to the Lender is accurate.
e. That the Borrower undertakes to promptly notify the Lender of any change in the Borrower’s particulars as mentioned hereto or of any circumstance(s) affecting the correctness of any of the particulars set forth hereto or in the Mode of Application immediately on the happening or occurrence of any such circumstance(s). In case of such event, the Lender may in its absolute discretion suspend operation / stop further withdrawal till fresh approval is obtained by the Borrower from the Lender for continuing the Loan and demand repayment of the Outstanding Amount.
f. That the obligation of the Borrower to repay the Outstanding Amount is independent of the arrangement between the Borrower or the student/xxxx and the Educational Institute. The Borrower agrees that the Lender shall not be responsible or liable for any services / course to be provided by the Educational Institute to the Borrower or his immediate relative and whether or not such services / course were satisfactory to the beneficiary, the obligation to pay the Outstanding Amount shall continue to subsist on the Borrower in accordance with this Agreement.
g. That once the loan is disbursed, the Borrower is liable to repay entire Outstanding Amount irrespective of his (or the student’s intending to enroll) usage or non-usage of the Educational Institute’s services. If the Borrower or his child/relative decides to not pursue the course after disbursement of Loan, he/still will still be liable to pay/repay entire Outstanding Amount. The Borrower agrees that failure to complete the educational course or dropping out of the course before it’s completion for any reason whatsoever will not absolve the Borrower’s liability to fully repay the entire Outstanding aAmount to the Lender.
h. That the Borrower undertakes to comply with any additional requirements and furnishing any additional documents or information required by the Lender anytime during the term of this Agreement, within the timelines mandated by the Lender. These include additional documents such as, but not limited to:
i. Bank Statements
ii. Salary Slips/Income Tax Returns.
iii. Additional know your customer / anti-money laundering related documents and undertakings The Lender may, at its sole discretion, not disburse the Loan on account of non-fulfillment of such conditions or non- submission of such documents or information within the timelines mandated by the Lender.
i. That in the event the Borrower is entitled to receive any amount of money from the Educational Institute either by way of a refund (including but not limited to the student dropping out of the course midway), reimbursement or any in other manner during the pendency of any Outstanding Amount, such amount shall be payable by the Borrower /Educational Institute to the Lender towards satisfaction of an equivalent portion of the Outstanding Amount.
Covenants and Agreements Each Grantor hereby covenants and agrees that to the extent any of the Collateral includes any Investment Related Property:
(i) in the event it acquires rights in any such Investment Related Property after the date hereof, it shall deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, reflecting such new Investment Related Property and all other such Investment Related Property. Notwithstanding the foregoing, it is understood and agreed that the security interest of the Collateral Agent shall attach to all such Investment Related Property immediately upon any Grantor’s acquisition of rights therein and shall not be affected by the failure of any Grantor to deliver a supplement to Schedule 4.4 as required hereby;
(ii) except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any such Investment Related Property, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any issuer of any such Investment Related Property, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) such Grantor shall immediately take all steps, if any, necessary or advisable to ensure the validity, perfection, priority and, if applicable, control of the Collateral Agent over such Investment Related Property (including, without limitation, delivery thereof to the Collateral Agent) and pending any such action such Grantor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of the Collateral Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each Grantor to retain all ordinary cash dividends and distributions paid by the issuer and all scheduled payments of interest and principal; and
(iii) each Grantor consents to the grant by each other Grantor of a Security Interest in all such Investment Related Property to the Collateral Agent.
Survival of Covenants and Agreements The covenants and agreements of the parties to be performed after the Effective Time contained in this Agreement shall survive the Effective Time.
Representations, Warranties and Covenants The Grantors jointly and severally represent, warrant and covenant to and with the Administrative Agent, for the benefit of the Secured Parties, that:
(a) as of the Effective Date, Schedule II sets forth a true and complete list, with respect to each Grantor, of (i) all the Equity Interests owned by such Grantor in any Subsidiary and the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests owned by such Grantor and (ii) all the Pledged Debt Securities owned by such Grantor;
(b) the Pledged Equity Interests and the Pledged Debt Securities have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Equity Interests, are fully paid and nonassessable and (ii) in the case of Pledged Debt Securities, are legal, valid and binding obligations of the issuers thereof, except to the extent that enforceability of such obligations may be limited by applicable bankruptcy, insolvency, and other similar laws affecting creditor’s rights generally; provided that the foregoing representations, insofar as they relate to the Pledged Debt Securities issued by a Person other than the Parent Borrower or any Subsidiary, are made to the knowledge of the Grantors;
(c) except for the security interests granted hereunder and under any other Loan Documents, each of the Grantors (i) is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by such Grantor, (ii) holds the same free and clear of all Liens, other than Liens permitted pursuant to Section 6.02 of the Credit Agreement and transfers made in compliance with the Credit Agreement, (iii) will make no further assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than Liens permitted pursuant to Section 6.02 of the Credit Agreement and transfers made in compliance with the Credit Agreement, and (iv) will defend its title or interest thereto or therein against any and all Liens (other than the Liens created by this Agreement and the other Loan Documents and Liens permitted pursuant to Section 6.02 of the Credit Agreement), however arising, of all Persons whomsoever;
(d) except for restrictions and limitations imposed by the Loan Documents or securities laws generally, the Pledged Equity Interests and, to the extent issued by Holdings or any Subsidiary, the Pledged Debt Securities are and will continue to be freely transferable and assignable, and none of the Pledged Equity Interests and, to the extent issued the Parent Borrower or any Subsidiary, the Pledged Debt Securities are or will be subject to any option, right of first refusal, shareholders agreement, charter, by-law or other organizational document provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect in any manner adverse to the Secured Parties in any material respect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Administrative Agent of rights and remedies hereunder;
(e) each of the Grantors has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated; and
(f) by virtue of the execution and delivery by the Grantors of this Agreement, when any Pledged Securities are delivered to the Administrative Agent in accordance with this Agreement, the Administrative Agent will obtain a legal, valid and perfected lien upon and security interest in such Pledged Securities, free of any adverse claims, under the New York UCC to the extent such lien and security interest may be created and perfected under the New York UCC, as security for the payment and performance of the Secured Obligations.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR Debtor represents, warrants and covenants as of the date of this Agreement and as of the date of each Collateral Schedule that:
(a) Debtor's exact legal name is as set forth in the preamble of this Agreement and Debtor is, and will remain, duly organized, existing and in good standing under the laws of the State set forth in the preamble of this Agreement, has its chief executive offices at the location specified in the preamble, and is, and will remain, duly qualified and licensed in every jurisdiction wherever necessary to carry on its business and operations;
(b) Debtor has adequate power and capacity to enter into, and to perform its obligations under this Agreement, each Note and any other documents evidencing, or given in connection with, any of the Indebtedness (all of the foregoing are called the "Debt Documents");
(c) This Agreement and the other Debt Documents have been duly authorized, executed and delivered by Debtor and constitute legal, valid and binding agreements enforceable in accordance with their terms, except to the extent that the enforcement of remedies may be limited under applicable bankruptcy and insolvency laws;
(d) No approval, consent or withholding of objections is required from any governmental authority or instrumentality with respect to the entry into, or performance by Debtor of any of the Debt Documents, except any already obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will not (i) violate any of the organizational documents of Debtor or any judgment, order, law or regulation applicable to Debtor, or (ii) result in any breach of or constitute a default under any contract to which Debtor is a party, or result in the creation of any lien, claim or encumbrance on any of Debtor's property (except for liens in favor of Secured Party) pursuant to any indenture, mortgage, deed of trust, bank loan, credit agreement, or other agreement or instrument to which Debtor is a party;
(f) There are no suits or proceedings pending in court or before any commission, board or other administrative agency against or affecting Debtor which could, in the aggregate, have a material adverse effect on Debtor, its business or operations, or its ability to perform its obligations under the Debt Documents, nor does Debtor have reason to believe that any such suits or proceedings are threatened;
(g) All financial statements delivered to Secured Party in connection with the Indebtedness have been prepared in accordance with generally accepted accounting principles, and since the date of the most recent financial statement, there has been no material adverse change in Debtors financial condition;
(h) The Collateral is not, and will not be, used by Debtor for personal, family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and Debtor will not be negligent in its care and use;
(j) Debtor is, and will remain, the sole and lawful owner, and in possession of, the Collateral, and has the sole right and lawful authority to grant the security interest described in this Agreement; and
(k) The Collateral is, and will remain, free and clear of all liens, claims and encumbrances of any kind whatsoever, except for (i) liens in favor of Secured Party, (ii) liens for taxes not yet due or for taxes being contested in good faith and which do not involve, in the judgment of Secured Party, any risk of the sale, forfeiture or loss of any of the Collateral, and (iii) inchoate materialmen's, mechanic's, repairmen's and similar liens arising by operation of law in the normal course of business for amounts which are not delinquent (all of such liens are called "Permitted Liens").
Covenants All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects.