Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service of process) has accepted its appointment. (b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower. (c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document. (d) The Original Financial Statements of the Additional Guarantor. (e) A certificate of an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred The Finance Documents, each duly executed by the parties to in Clause 38.2 (Service of process) has accepted its appointmentit.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped The Issuer Registration Undertaking Letter duly executed by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) parties to the accession of such Additional Borrowerit.
(c) The Custody Agreements duly executed by each Chargor and the Custodian.
(d) The Notices to Custodian duly executed by each Chargor and acknowledged by the Custodian and the Lender.
(e) A copy of an amendment agreement to the SPA evidencing that certain restrictions arising under the SPA in respect of the SPA Shares have been irrevocably waived by the Issuer in favour of the Lender.
(f) Evidence of the shareholding information and details in respect of each Chargor in form and substance satisfactory to the Lender.
(g) A copy of the balance sheet of each of the Chargors as at 28 February 2013.
(h) A certificate of each Chargor (signed by a director) certifying that each copy document delivered by it as specified in this Schedule 1 and/or any document or evidence delivered hereunder in copy form is correct, complete, and in full force and effect as at a date no earlier than the date of this Agreement.
(i) Evidence that each of the Chargors has obtained all governmental and/or regulatory approvals and licences (including, but not limited to, any third party approvals and licences) that are required to be obtained by it for the purposes of executing, delivering and legally performing its respective obligations and discharging its respective duties under the Finance Documents.
(j) A copy of any other Authorisation or other document, authorisation, opinion or assurance which as reasonably requested by the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance DocumentLender.
(dk) The Original Financial Statements of Evidence that the Additional Guarantorfees, costs and expenses then due from the Borrower pursuant to Clause 10 (Fees) and Clause 15 (Costs and Expenses) have been paid or will be paid by the Utilisation Date.
(el) A certificate Evidence that each of an Authorised Signatory from the finance department Chargors has established each of that Additional Obligor if it is a U.S. Guarantor stating their Charged Accounts.
(m) Confirmation in form and substance satisfactory to the Lender that the respective company is Solvent after giving effect to the initial Loans, the application register of members of the proceeds Issuer shall be updated immediately upon closing of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation issue of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations SPA Shares pursuant to the Mexican Ley de Concursos Mercantiles. In computing terms of the amount SPA to reflect the Borrower as the holder of contingent or unliquidated liabilities at any timethe SPA Shares and to include the notations required to be made pursuant to the Share and Account Charge.
(n) If requested by the Lender, such liabilities the Lender shall have received a fully executed Federal Reserve Form U-1 and shall be computed at satisfied that the amount thatLoan and the use of proceeds thereof shall be in compliance with the provisions of Regulations T, U and X.
(o) Evidence that each process agent referred to in light of all the facts Share and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liabilityAccount Charge has accepted its appointment. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] Kanrich Holdings Limited To: [Agent·] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)Sirs
Appears in 1 contract
Samples: Margin Loan Facility Agreement (E-House (China) Holdings LTD)
Other documents and evidence. (a) Evidence that any process agent referred 5.1 A duly concluded amendment agreement to in Clause 38.2 (Service each bank account agreement entered into with the Original Lender, providing consent to the direct debiting of process) has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped funds by the Bank Facility Administrator on the basis of Spain (Banco de España)collection orders, whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation bank orders, payment demands or other documentdocuments, opinion or assurance which for the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified purposes of the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated Borrower’s obligations under the Finance Documents, with the possibility of partial performance where there are insufficient funds on the Borrower’s account.
5.2 Confirmation of payment of the Facility fee specified in Clause 11.2 (Facility Fee).
5.3 Confirmation of payment of remuneration to legal advisors (Xxxxxxx Xxxxx Xxxxxxxxx CIS LLP and Xxxxxxxxxx Xxxxxxxx LLC).
5.4 Any other permits or other documents, opinions or representations which the Obligors were told by the Facility Administrator were necessary or expedient for the conclusion and execution of any Finance Document Documents and transactions thereunder, or for ensuring the validity and enforceability of any Finance DocumentDocuments. 1. LOAN AGREEMENTS BETWEEN THE BORROWERS
1.1 Borrower-certified copies of each Loan Agreement Between the Borrowers in a form approved by the Facility Administrator.
(d) The 1.2 Original Financial Statements or copy, properly certified by the relevant company, of a resolution by the authorized governing body of the Additional GuarantorBorrower, Zemenik, and Headhunter Group approving the terms of the Loan Agreements Between the Borrowers to which the relevant company is party and the transactions they contemplate, as well as any associated transactions, including (as the case may be) approval of a transaction as a major transaction and/or a non-arms-length transaction (in the meaning given those terms by Russian Federation law).
(e) 1.3 A certificate notarised and, if applicable, apostilled copy of an Authorised Signatory from the finance department power of that Additional Obligor if it is a U.S. Guarantor stating that attorney granting authorised representatives of the respective Borrower, Zemenik, and Headhunter Group the authority required to sign the Loan Agreements Between the Borrowers to which the relevant company is Solvent after giving effect to the initial Loansparty, or, as appropriate, the application authority required to sign or send any documents or notices involving the Loan Agreements Between the Borrowers to which the relevant company is party (if applicable).
1.4 Borrower-certified copies of Xxxxxxx's and the Borrower's corporate approvals and powers of attorney for the signing of such loan agreements.
1.5 Irrevocable instructions signed by the Borrower for the transfer of loan amounts under each Loan Agreement Between the Borrowers.
1.6 An irrevocable instruction signed by Xxxxxxx for transfer of the proceeds loan amount under the relevant Loan Agreement Between the Borrowers for early loan repayment under the Existing Facility Agreement in which Zemenik is the borrower.
1.7 An irrevocable instruction signed by Headhunter Group for transfer of the Loans loan amount under the relevant Loan Agreement Between the Borrowers for early loan repayment under the Existing Facility Agreement in accordance with Clause 3 (Purpose) and which Headhunter Group is the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)borrower.
Appears in 1 contract
Samples: Syndicated Facility Agreement (HeadHunter Group PLC)
Other documents and evidence. (a) A copy of each Security Document (other than the Borrower Share Charge, the Onshore Land Use Rights Mortgage and the Onshore Buildings Mortgage) duly executed by the parties to it, together with all documentation, and/or evidence of all other steps, required to perfect such Security Documents as advised to the Security Agent by its legal advisers in each relevant jurisdiction.
(b) A copy of each Fee Letter duly executed by the parties to it.
(c) A copy of each Warrant Document in the Agreed Form.
(d) Evidence that this Agreement has been duly registered with a competent office of SAFE, together with a copy of the foreign borrowings registration certificate issued by SAFE in respect of the Facility.
(e) Evidence that any process agent referred to in Clause 38.2 (Service of process) has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(cf) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Transaction Document or for the validity and enforceability of any Finance Transaction Document.
(dg) Evidence of the establishment of each of the Debt Service Reserve Account and the Onshore Proceeds Account.
(h) Evidence that the amount standing to the credit of the Debt Service Reserve Account on the Utilisation Date will not be less than the Debt Service Reserve Amount.
(i) Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 10 (Fees) and Clause 15 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
(j) Such information or evidence as may reasonably be required by a Finance Party to satisfy its know your customer requirements.
(k) Confirmation satisfactory to the Agent that all conditions precedent to the availability of the Onshore Facility have been satisfied or waived, save for any such condition equivalent to this condition, and that the Onshore Facility has been or will, upon drawdown of the Facility, be drawn.
(l) Evidence that all fees relating to the perfection, registration, filing and approval of the Security then due have been paid.
(m) Evidence that all stamp, registration and similar taxes payable in connection with the Transaction Documents that have been executed have been paid.
(n) The Original Financial Statements Group Structure Chart.
1. An Accession Letter, duly executed by the Additional Guarantor and the Borrower.
2. A copy of the constitutional documents of the Additional Guarantor.
3. A copy of a resolution of the board of directors of the Additional Guarantor:
(ea) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter and each Finance Document;
(b) authorising a specified person or persons to execute the Accession Letter and each Finance Document on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
5. If so required by the Agent, a copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party.
6. A certificate of an Authorised Signatory from the finance department of Additional Guarantor (signed by a director) confirming that Additional Obligor if guaranteeing the Total Commitments would not cause any guaranteeing or similar limit binding on it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)exceeded.
Appears in 1 contract
Samples: Facility Agreement (China Shandong Industries, Inc.)
Other documents and evidence. (a) Evidence that A certified copy of any process agent referred other Authorisation or other document, opinion or assurance which the Lender acting on the advice of Russian law counsel considers to be necessary or desirable (if it has notified the Borrower accordingly) in Clause 38.2 (Service connection with the entry into and performance of process) has accepted its appointmentthe transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document, including certified copies of all necessary approvals and consents from the Central Bank, as the case may be.
(b) In relation to any Additional Borrower incorporated in Spain, a copy The Original Financial Statements of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date in respect of the Tranches.
(d) The original of the EKN Final Guarantee in terms satisfactory to the Lender which shall be in full force and effect and all conditions to the effectiveness thereof shall have been satisfied.
(e) A certified copy of the Frame Supply Contract, duly executed by the Borrower and the Supplier and a certified copy of the relevant Purchase Orders evidencing (to the satisfaction of the Lender) that the Borrower is required to purchase equipment in accordance with the Frame Supply Contract and such Purchase Orders in an aggregate amount of USD 320,000,000.
(f) In respect of the Frame Supply Contract and the Purchase Orders, a statement from the Supplier that it has not engaged in any bribery or other corrupt activity as may be required by EKN.
(g) A certified copy of the Business Plan and budget approved by the board of directors of the Borrower evidencing that the entering into of the Facility is within limits set out by such budget and Business Plan.
(h) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent Lender considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(d) The Original Financial Statements of the Additional Guarantor.
(e) A certificate of an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount Satisfactory completion of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles“know-your-customer” due diligence. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] OJSC Mobile Telesystems, Moscow To: [Agent] Skandinaviska Enskilda Xxxxxx XX (publ) Dated: [ ] Dear Sirs dated [—] (the “Facilities Agreement”)Sirs
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service of process) the Finance Documents has accepted its appointment.
(bx) In Xxxx executed and undated (with authorisation to date them on the Utilisation Date) novation agreements in relation to any Additional Borrower incorporated the existing hedging contracts and in Spain, a copy favour of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional BorrowerHedging Coordinators.
(c) The Agent shall have received:
(i) a certificate of ownership from the appropriate authorities showing the registered ownership of the Ship;
(ii) a report, in form and scope acceptable to the Lenders, from a firm of marine insurance brokers acceptable to the Lenders with respect to the insurance maintained in respect of the Ship, together with a certificate from such broker certifying that such insurances (A) are placed with such insurance companies and/or underwriters and/or clubs, in such amounts, against such risks, and in such form, as is acceptable to the Lenders and (B) conform with requirements of the mortgage taken for the benefit of the Lenders in the Ship then acting as security under the Facility; and
(iii) an undated certificate of the Borrower (signed by a director) (with authorisation to follow on the Utilisation Date that this can be dated on the Utilisation Date) confirming that:
(A) on the Utilisation Date, no Default is continuing or would result from the proposed Utilisation;
(B) on the Utilisation Date, all of the representations set out in clause 18 (Representations) are true; and
(C) Total has not given a notice of termination in respect of the Charter Contract.
(d) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(de) Copy of the Charter Contract (including any amendments).
(f) Receipt of the duly executed version of the Consent and Agreement in the form attached hereto as Schedule 7 (Form of Consent and Agreement).
(g) The Original Financial Statements of the Additional GuarantorStatements.
(eh) A certificate of an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating Evidence that the respective company is Solvent after giving effect aggregate credit balance on the Debt Service Reserve Account is, or will, immediately following the Utilisation, be at least equal to the initial Loans, the application applicable Debt Service Reserve.
(i) Copies of the proceeds of the Loans safety management certificate in respect ofthe Ship issued in accordance with Clause 3 the ISM Code.
(Purposej) The international ship security certificate in respect of the Ship issued under the ISPS Code.
(k) The document of compliance issued in accordance with the ISM Code to the person who is the operator of the Ship for the purposes of that code.
(l) Copy of each Management Agreement.
(m) Such evidence as the Agent may reasonably require and which the Borrower uses its reasonable endeavours to provide as to the due incorporation of the relevant Charterer and any other party to the Charter Contract (other than an Obligor) and the payment Quiet Enjoyment Agreement, their power and authority to enter into and perform those documents and the authorisation of all estimated legaltheir entry into them.
(n) All costs, accounting fees, expenses (including, without limitation, legal fees and expenses) and other fees related compensation contemplated hereby, payable to this Agreement the Agent and the consummation Lenders and the Hedging Providers or otherwise payable in respect of the other transactions contemplated by this AgreementFacility, shall have been paid to the extent due. For purposes of this certificate, “Solvent” means, with respect Evidence that any Account required to any Personbe established under clause 26 (Bank accounts) has been opened and established, that any Account Security in respect of each such Person (a) owns Account has been executed and will own assets delivered by the fair saleable value of which are (i) greater than the total amount of its debts Borrower and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be any notice required to pay be given to an Account Bank under that Account Security has been given to it and acknowledged by it in the probable liabilities of its then existing debts, as such debts become absolute manner required by that Account Security and matured and considering all financing alternatives and potential asset sales reasonably available that an amount has been credited to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”).
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 39.1 (Service Jurisdiction; consent to service of process) ), if not an Original Obligor, has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation Authorization or other document, opinion or assurance assurance, including any required corporate, governmental or regulatory consents or approvals which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(dc) The Original Financial Statements Statements.
(d) Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the Utilization Date.
(e) If any term loans are drawn under the Senior Facilities on the Closing Date, duly executed Security Documents. Otherwise, duly executed Share Pledge Agreements.
(f) A certificate from the chief executive or chief financial officer of the Borrower confirming that: (i) after giving pro forma effect to the Merger and all related transactions, no Default or Event of Default exists under the Facility, (ii) the representations made by each Obligor on the date of this Agreement pursuant to Clause 18 were true in all material respects as of the date of this Agreement, (iii) the Repeating Representations to be made by each Obligor are true in all material respects, (iv) the Borrower has the ability to upstream cash from its operating Subsidiaries, including the Target and members of the Target Group and (v) there will be no change to the capitalization and structure of the Borrower adverse to the Lenders, as reasonably determined by the Agent, after giving effect to the Merger and all related transactions from that which was approved by the Agent (except as permitted by this Agreement).
(g) The Agent shall have received a financial model and funds flow for the Group.
(h) The provision of all information reasonably required by the Lenders to comply with Anti-Money Laundering and “know your client” regulations.
(i) Evidence that the terms of each of the Existing Facility and the Existing Target Facility have been amended solely to permit the Merger and the related transactions.
(j) The Merger shall have been consummated substantially simultaneously with the Loan in accordance with applicable law and on the terms described in the Merger Agreement and no material term or condition of the Merger Agreement shall have been waived or amended in any respect that is adverse to the interest of the Lenders (as reasonably determined by the Agent) without the consent of the Agent (which consent shall not be unreasonably withheld or delayed).
(k) There not having occurred any event, change or condition since 31 July 2005 that, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect (as defined in the Merger Agreement) on the Target and its subsidiaries.
1. A K-bis extract (or its equivalent) for the Additional Guarantor, not more than one month old.
2. An Accession Letter, duly executed by the Additional Guarantor and the Borrower.
3. A copy of the constitutional documents of the Additional Guarantor.
(e) A certificate of an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 43.2 (Service of process) has accepted its appointment.
(b) In relation Evidence that the fees, costs and expenses then due from the Parent or any member of the BST Group pursuant to any Additional Borrower incorporated in SpainClause 17 (Fees), a copy of form PE-1 stamped Clause 17.5 (Interest, commission and fees on Ancillary Facilities), Clause 22 (Costs and expenses) and Clause 18.5 (Stamp taxes) have been paid or will be paid by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrowerfirst Utilisation Date.
(c) A copy of any other Authorisation or other document, opinion or assurance The Group Structure Chart which shows the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it BST Group assuming the Closing Date has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Documentoccurred.
(d) The Original Financial Statements of Reports together with confirmation that they can be relied upon by the Additional GuarantorFinance Parties.
(e) A certificate of copy, certified by an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application authorised signatory of the proceeds Parent to be a true copy, of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount Original Financial Statements of its debts and liabilities, subordinated, contingent or otherwise; each member of the Target Group and (ii) the opening balance sheet of the Parent.
(f) A certificate signed by an authorised signatory of the Parent specifying each member of the BST Group (assuming the Closing Date has occurred) which is a Dormant Company as at the Closing Date together with certified copies (certified by such Authorised signatory to be a true copy) of the last audited accounts of each such Dormant Company.
(g) Evidence that the transactions referred to in Steps 1 to 4 of the Structure Memorandum will be completed on or prior to the Closing Date.
(h) The Funds Flow Statement in a form agreed by the Parent and the Agents detailing the proposed movement of funds on or before the Closing Date.
(i) A Certificate of the Parent (signed by a director) detailing the estimated Acquisition Costs.
(j) A Certificate of the Original Borrower (signed by a director) certifying that:
(i) each of the conditions to Completion specified in the Sale and Purchase Agreement has been satisfied or, with the consent of the Agents, waived (other than payment of the purchase price which will be satisfied immediately following utilisation of the Term Facilities);
(ii) no Acquisition Document has been amended, varied, novated, supplemented, superseded, waived or terminated except with the consent of the Agents;
(iii) the Original Borrower is not aware of any breach of any warranty or any claim under the Sale and Purchase Agreement;
(iv) no Material Adverse Effect (as defined in the Sale and Purchase Agreement) has occurred; and
(v) upon utilisation of the Term Facilities, Completion will occur.
(k) A certificate of the Parent (signed by a director) certifying that:
(i) the Subscription Agreements are in full force and effect;
(ii) the Original Investors have subscribed for shares in the Parent in an aggregate amount of not less than EUR 63,000,000 and that the Parent has subscribed for shares in the Original Borrower in an aggregate amount of not less than EUR 10,000,000;
(iii) those shares subscribed for have been issued fully paid; Shares in the Parent EUR 63,000,000 Shares in the Original Borrower EUR 10,000,000
(l) Utilisation Requests relating to any Loans to be made on the Closing Date.
(m) Evidence that any third party Financial Indebtedness of any member of the Target Group will be unconditionally and irrevocably discharged prior to or simultaneously with the initial funding of the Term Facilities and all existing security of any such entity will be unconditionally and irrevocably released prior to or simultaneously with such initial funding.
(n) A certificate of the Parent confirming which companies within the BST Group are Material Companies.
(o) A solvency certificate from the finance director of each member of the BST Group (to the extent not included in the relevant director’s certificate).
(p) Evidence that Debt Cover (for the avoidance of doubt, excluding the operating leases referred to in paragraph (t) below) as at the Closing Date (calculated on a pro-forma basis for the last twelve months) for the Target Group is not greater than 3.9:1.
(q) A certificate signed by an authorised signatories of the Parent confirming that the aggregate net present value (calculated in accordance with the Sale and Purchase Agreement) of the Post-Closing Leases does not exceed the Post-Closing Leases Maximum Amount or if the Post-Closing Leases Maximum Amount is to be exceeded, evidence that cash is/will be held in escrow in a Holding Account in the amount of the excess.
(r) Evidence that will all applicable anti-money laundering and “know your customer” laws and regulations applicable to each Original Obligor have been complied with, including receipt of all documentation and other information that may be required in order to pay enable compliance with the probable liabilities United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
1. An Accession Letter executed by the Additional Obligor and the Parent.
2. A copy of the constitutional documents of the Additional Obligor and (if applicable) a recent excerpt from its then existing debtscommercial register.
3. A copy of a resolution of the board of directors (and/or, as such debts become absolute if applicable, the supervisory or advisory board or the shareholder(s)) of the Additional Obligor:
(a) approving the terms of, and matured the transactions contemplated by, the Accession Letter and considering all financing alternatives the Finance Documents and potential asset sales reasonably available resolving that it execute, deliver and perform the Accession Letter and any other Finance Document to it; which it is party;
(b) has capital that is not unreasonably small authorising a specified person or persons to execute the Accession Letter and other Finance Documents on its behalf;
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to its business as presently conducted and as proposed an Additional Borrower, any Utilisation Request or Selection Notice) to be conducted signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and
(d) authorising the Parent to act as its agent in connection with the Finance Documents
4. A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
5. Except where the Additional Obligor is incorporated in Germany, a certificate of the Additional Obligor (signed by a director) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on it to be exceeded.
6. A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Part II of Schedule 2 is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of the Accession Letter.
7. If available, the latest audited financial statements of the Additional Obligor.
8. The following legal opinions, each addressed to the Effective Date; Agent, the Security Agent and the Lenders:
(a) A legal opinion of the legal advisers to the Parent in England, as to English law in the form distributed to the Lenders prior to signing the Accession Letter.
(b) If the Additional Obligor is incorporated in or has its “centre of main interest” or “establishment” (as referred to in Clause 24.26 (Centre of main interests and establishments)) in a jurisdiction other than England and Wales or is executing a Finance Document which is governed by a law other than English law, a legal opinion of the legal advisers to the Agent in the jurisdiction of its incorporation, “centre of main interest” or “establishment” (as applicable) or, as the case may be, the jurisdiction of the governing law of that Finance Document (the “Applicable Jurisdiction”) as to the law of the Applicable Jurisdiction and in the form distributed to the Lenders prior to signing the Accession Letter.
9. If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the process agent specified in Clause 43.2 (Service of process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor.
10. Any security documents which, consistent with the Security Principles, are required by the Agents executed by the proposed Additional Obligor.
11. Any notices or documents required to be given or executed under the terms of those security documents.
12. An accession memorandum to the Intercreditor Deed executed by the Additional Obligor.
13. Such documentary evidence as legal counsel to the Agents may reasonably require, that such Additional Obligor has complied with any law in its jurisdiction relating to financial assistance or analogous process. Parent (a) Pledge over shares in the Original Borrower (b) First Lien Security Agreement (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and Second Lien Security Agreement (d) First Lien Intellectual Property Security Agreement (e) Second Lien Intellectual Property Security Agreement (a) notification of companies whose shares are pledged – notary is not, or to be instructed to notify accordingly without delay The Original Borrower (a) Pledge over shares in the Target (b) Account pledges (a) notification of companies whose shares are pledged – notary is not deemed to be, in general default be instructed to notify accordingly without delay (b) notification of its obligations account keeping banks and request of waiver of their prior ranking rights pursuant to the Mexican Ley de Concursos Mercantiles. In computing relevant banks’ standard terms and conditions – no later than 10 business days after the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets date of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)account pledge agreement
Appears in 1 contract
Samples: Term and Revolving Facilities Agreement (International Textile Group Inc)
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service of process) has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(d) The Original Financial Statements of the Additional Guarantoreach Original Obligor.
(eb) Evidence that the fees then due from the Parent pursuant to Clause 14 (Fees) have been paid or will be paid by the first Utilisation Date.
(c) Evidence that the Company has given notice of prepayment and cancellation pursuant to, and to the extent permitted under, the Existing Facilities and has delivered an authorisation to the Agent to apply the proceeds of the First Utilisation hereunder in discharge of all outstandings under the Existing Facilities.
(d) A certificate of an Authorised Signatory from the finance department Chief Financial Officer of that Additional Obligor if it is a each U.S. Guarantor Group Company stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, means with respect to such Obligor on any Person, date of determination that such Person (a) owns and will own assets the fair saleable value of which are (i) the property of such person is greater than the total amount of its debts liabilities (including contingent and unliquidated liabilities, subordinated, contingent or otherwise) of such person; and (iib) greater the present fair saleable value of the assets of such person is not less than the amount that which will be required to pay the probable liabilities liability of such person on its then existing debts, debts as such debts they become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Datemature; (c) such person does not intend to incur to, and does not believe that it will will, incur debts or liabilities beyond its such person’s ability to pay as such debts as they become dueand liabilities mature; and (d) is not, or such person is not deemed engaged in a business or transaction, and is not about to beengage in a business or transaction, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantilesfor which such person’s property would constitute unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall will be computed at the amount thatwhich, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or and matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”).
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service of process) has accepted its appointmentThis Agreement and each Fee Letter duly executed by the parties thereto.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent reasonably considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and Borrower prior to the Company accordinglydate of this Agreement by the Borrower) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(dc) The Original Financial Statements Statements.
(d) Each of the Account Charge, each Share Charge (and the documents required to be delivered on the date of its execution) and the Assignment of Loans duly executed (but in each case, left undated pending the making of the first Utilisation on the first Utilisation Date and the full redemption of the Notes on 29 August 2016) by the parties thereto.
(e) Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
(f) Any documentation reasonably requested by any Finance Party to enable it to carry out and be satisfied with the results of applicable "know your customer" requirements or anti-money laundering or other procedures under applicable law and regulations for the purposes of entry into and payments under the Finance Documents.
(g) If the Notes are not yet redeemed in full at such time, a copy (certified by a director of Guarantor D) of the consent letter issued by HSBC Bank Middle East Limited (as a bilateral lender of Guarantor D under certain general banking facility (the "HSBC Facility")) either (i) agreeing to the granting of the guarantee by Guarantor D under the terms of this Agreement or (ii) otherwise waiving the relevant restrictions under the HSBC Facility (or of similar effect) so that the granting of the guarantee by Guarantor D hereunder would not result in a breach of the HSBC Facility.
(h) Evidence that (i) the DSRA is maintained with the Account Bank and (ii) the credit balance of the DSRA is not less than or will (by the first Utilisation Date) be not less than, the Interest Reserve Amount (calculated with reference to the amount of the proposed first Utilisation).
(i) If the Notes are fully redeemed, evidence of such full redemption. Part II Conditions Precedent Required To Be Delivered By an Additional Guarantor
1. A copy of the constitutional documents of the Additional Guarantor.
2. A copy of a resolution of the board of directors of the Additional Guarantor:
(ea) approving the terms of, and the transactions contemplated by, the Accession Letter and this Agreement and resolving that it execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession Letter on its behalf;
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with this Agreement; and
(d) resolving that it is in the best interests of the Additional Guarantor to enter into the transactions contemplated by the Accession Letter, giving reasons.
3. A specimen of the signature of each person authorised by the resolution referred to in paragraph 2 above and certified copy of the personal identification document of each person authorised by the resolution referred to in paragraph 2 above.
4. A copy of a resolution signed by all the holders of the issued shares in the Additional Guarantor, approving the terms of the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party.
5. A certificate of an Authorised Signatory from a director of the finance department Additional Guarantor certifying that:
(a) each copy document listed in and delivered pursuant to this Part II of that Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter; and
(b) guaranteeing the Total Commitments would not cause any guarantee or similar limit binding on it to be exceeded;
6. A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent reasonably considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of the Accession Letter.
7. If available, a copy of the latest audited financial statements of the Additional Obligor if it Guarantor.
8. A legal opinion of Xxxxx & XxXxxxxx, legal advisers to the Lenders and the Facility Agent in Hong Kong.
9. If the Additional Guarantor is incorporated in a jurisdiction other than Hong Kong, a legal opinion of the legal advisers to the Lenders and the Facility Agent in the jurisdiction in which the Additional Guarantor is incorporated. SCHEDULE 3 Part I Form Of Utilisation Request From: Xinda Holding (HK) Company Limited (as Borrower) To: Standard Chartered Bank (as Facility Agent) [date] Dear Sirs
1. We refer to the Facility Agreement. This is a U.S. Guarantor stating Utilisation Request. Terms defined in the Facility Agreement shall have the same meaning in this Utilisation Request.
2. We wish to borrow the following Loan on the following terms: Proposed Utilisation Date: [ ] (or, if that is not a Business Day, the respective company next Business Day) Amount of Loan: Interest Period: US$[ ] or, if less, the Available Facility [ ] Month[s]
3. We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is Solvent after giving effect satisfied on the date of this Utilisation Request and, unless we notify to you to the initial Loanscontrary, you may assume that each such condition shall remain satisfied on the application proposed Utilisation Date by reference to facts and circumstances then existing.
4. The Loan shall [first of all, be applied by the Facility Agent towards payment of arrangement fee as set out in the Fee Letter as referred to in Clause 11.1 (Arrangement fee) and funding of the proceeds Interest Reserve Amount required for the making of this Loan and then] be applied for the Loans purposes stated in accordance with Clause 3 3.1 (Purpose) and the payment proceeds of all estimated legal, accounting and other fees related this Loan should be credited to this Agreement and the consummation following account1: 1 In respect of the other transactions contemplated first Utilisation, this should be the following account as designated by this the trustee of the Notes unless the Notes are fully redeemed before the first Utilisation Date (unless otherwise informed by the trustee of the Notes in writing): To: XXXXXXXX N.A. New Work SWIFT XXXXXX00 Account/IBAN: 00000000 Favour: Citibank N.A., London office, SWIFT: CITIGB2L Reference: GATS US312086AA95 Account no.: Account bank:
5. This Utilisation Request is irrevocable. Part II Selection Notice From: Xinda Holding (HK) Company Limited (as Borrower) To: Standard Chartered Bank (as Facility Agent) Dated: Dear Sirs
1. We refer to the Facility Agreement. For purposes of This is a Selection Notice. Terms defined in the Facility Agreement shall have the same meaning in this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant Selection Notice.
2. We refer to the Mexican Ley de Concursos MercantilesLoan with an Interest Period ending on [ ] and request that the next Interest Period for such Loan is [ ] Month[s].
3. In computing the amount This Selection Notice is irrevocable. Yours faithfully ….................................. authorised signatory for Xinda Holding (HK) Company Limited Part III Form of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration Accession Letter To: Standard Chartered Bank (giving effect to reasonable and customary costs of sale and taxesHong Kong) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS Limited as Facility Agent From: [Each relevant Borrowername of Additional Guarantor] To: [Agent] and Xinda Holding (HK) Company Dated: Dear Sirs dated [—] (the “Facilities Agreement”)Sirs
Appears in 1 contract
Other documents and evidence. (a) The group structure chart indicating the group structure of Cayman Co and its Subsidiaries upon completion of the Relevant Permitted Reorganisation (as defined in Schedule 2 (Amended and Restated Agreement)) and showing such information as specified in Clause 18.25 (Group Structure Chart) of the Original Facility Agreement.
(b) Evidence of application to SAFE for the filing of the particulars of this Agreement and the Amended and Restated Agreement, if such filing is necessary or desirable as advised by the legal advisers in the PRC to the Facility Agent.
(c) A copy of the updated register of members and register of transfers of Holdco, as certified by its registered agent.
(d) A certificate of good standing in respect of Cayman Co.
(e) All documentation and other evidence as is reasonably requested by the Facility Agent (for any or all of the Finance Parties) in order for any or all of the Finance Parties to carry out and be satisfied with the results of all necessary “know your customer”, anti-money laundering and/or other similar checks under all applicable laws and regulations in connection with any or all the Restructuring Documents and/or the transactions contemplated thereunder.
(f) Evidence that any each of the process agent agents (which is not a member of the Group) referred to in Clause 38.2 37.2 (Service of processProcess) of the Amended and Restated Agreement (in respect of its appointment by Cayman Co) and/or in any other Restructuring Document has accepted its appointment.
(bg) In relation Evidence that the fees, costs and/or expenses then due from any Obligor pursuant to Clause 5 (Fees, Costs and Expenses) or any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped Transaction Warrant Document have been paid or will be paid by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional BorrowerEffective Date.
(ch) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with (i) the entry into and and/or performance of the transactions transaction contemplated by any Restructuring Document or Transaction Finance Document or and/or (ii) for the legality, validity and and/or enforceability of any Restructuring Document or Transaction Finance Document. (see following page) dated 8 January 2010 dated 11 January 2010 AS FURTHER AMENDED AND RESTATED PURSUANT TO A SECOND AMENDMENT AGREEMENT dated October 11, 2010 TIANJIN NEW HIGHLAND SCIENCE AND TECHNOLOGY DEVELOPMENT CO., LTD.
(d) 1. Definitions And Interpretation 1
2. The Original Financial Statements of the Additional Guarantor.
(e) A certificate of an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this AgreementFacility 31 3. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)Purpose 31
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred A copy, certified by an authorised signatory of the Sponsor to in Clause 38.2 (Service be a true copy, of process) has accepted its appointmentthe Original Financial Statements.
(b) In relation Confirmation from each Original Lender that it has carried out its “know your customer” procedures to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrowerits satisfaction.
(c) A copy of any other Authorisation The Administrative Agent shall have received true copies (certified to be such by the Borrower or other appropriate party) of all consents, licenses and approvals required in accordance with applicable legal requirements, or in accordance with any document, opinion agreement, instrument or assurance arrangement to which the Facility Agent considers (after having taken appropriate legal advice) to be necessary Borrower or desirable (if it has notified the Additional Obligor Sponsor is a party, and the Company accordingly) in each case, in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the execution, delivery, performance, validity and enforceability of this Agreement and the other Finance Documents. In addition, the Borrower and the Sponsor shall each have all such consents, licenses and approvals as required under Clauses 22.7 (Governmental Authorization; Other Consents) and 23.6 (Governmental Authorization; Other Consents), and such approvals shall be in full force and effect, and all applicable waiting periods shall have expired without any Finance Documentaction being taken or threatened by any competent Governmental Authority which would restrain, prevent or otherwise impose materially adverse conditions on this Agreement and the actions contemplated hereby.
(d) The Original Financial Statements Confirmation from the Borrower that no action, suit, investigation or other proceeding (including, without limitation, the enactment or promulgation of a statute or rule) by or before any arbitrator or any Governmental Authority shall be pending or, to the knowledge of the Additional GuarantorBorrower, threatened and no preliminary or permanent injunction or order by a state or federal court shall have been entered in connection with (A) the Initial Borrowing Base Asset of the Borrower or (B) this Agreement or any transaction contemplated hereby.
(e) A certificate Receipt by the Administrative Agent of an Authorised Signatory the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Borrower and the Pledgor in such jurisdictions as the Administrative Agent may require and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Security indicated by such financing statements (or similar documents) are permitted by this Agreement or have been released.
(f) The Administrative Agent shall be satisfied in its sole discretion with the title to the Initial Borrowing Base Asset.
(g) Confirmation from the finance department of Administrative Agent that Additional Obligor if it is a U.S. Guarantor stating that all reasonable and documented fees and expenses (including legal fees) payable by the respective company is Solvent after giving effect Borrower and the Sponsor under the Finance Documents as at the first Utilisation Date (to the initial Loans, extent previously invoiced) have been paid or the application of Borrower has authorised the Administrative Agent to deduct the same and apply them in payment from the proceeds of the Loans first Loan.
(h) The Administrative Agent shall have received all appropriate information needed to be in accordance compliance with Clause 3 the Patriot Act, including taxpayer identification and social security numbers of all institutions or individuals holding ten percent (Purpose10%) or greater of the outstanding equity interest of the Sponsor and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are Borrower.
(i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount Evidence that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall the Phase 1 Development Costs remaining to be computed at paid after the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes date of this definition “fair saleable value” means Agreement is equal to or less than the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets sum of the applicable entity are sold with reasonable promptness Total Commitments and any amounts deposited in an arm’s length transaction under present conditions for the sale Proceeds Account by the Sponsor pursuant to Clause 8(b) (Accounts) of assets of comparable business enterprisesthis Schedule 2. REQUESTS From: [Each relevant Borrower] Cobalt GOM #1 LLC To: [Administrative Agent] Dated: Dear Sirs Cobalt GOM #1 LLC — up to US$650,000,000 Borrowing Base Facility Agreement dated 29 May 2015 (the “Facility Agreement”)
1. We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in the Facility Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
(a) Proposed Utilisation Date: [—·] (or, if that is not a Business Day, the next Business Day)
(b) Amount: US$ [·] or, if less, the Available Facility
(c) Type: [LIBOR Loan][Reference Rate Loan]
(d) [Interest Period: [·]](1)
3. We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
6. [We intend to apply the Loan for the following purpose(s): [·](2)](3)
(1) Borrower to include Interest Period only if the Loan requested is a LIBOR Loan.
(2) Borrower to attach copy of Operator cash call where required pursuant to clause 4.2(b) (Further Conditions Precedent). Borrower need not include Part 6 if the Loan requested is a One-Day Reference Rate Loan.
(3) Borrower to include certifications specified in clause 4.2(b) (Further Conditions Precedent). NOTES: From: Cobalt GOM #1 LLC To: [Administrative Agent] Dated: Dear Sirs Cobalt GOM #1 LLC — up to US$650,000,000 Borrowing Base Facility Agreement dated 29 May 2015 (the “Facility Agreement”)
1. We refer to the Facility Agreement. This is a Selection Notice. Terms defined in the Facility Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
2. We refer to the following [LIBOR Loan[s] with an Interest Period ending on [ ](4) (the “Existing LIBOR Loan[s]] [and] [Reference Rate Loan[s] in the aggregate amount of [$ ] (the “Facilities AgreementExisting Reference Rate Loan[s]”)].
3. We request [that the Existing LIBOR Loan[s] be Converted to a Reference Rate Loan] [that the Existing Reference Rate Loan[s] be Converted to a LIBOR Loan with an Interest Period of [ ]] [the continuation of the Existing LIBOR Loan[s] for an Interest Period of [ ]](5).
4. [We request that [the Existing LIBOR Loans Loan[s]] [the Existing Reference Rate Loan[s] subject to Conversion] be divided into [ ] LIBOR Loans with the following amounts and Interest Periods:](6)
5. This Selection Notice is irrevocable.
(4) Insert details of all Loans which have an Interest Period ending on the same date.
(5) Use this option if sub division is not required
(6) Use this option if division of Loans is requested
Appears in 1 contract
Samples: Borrowing Base Facility Agreement (Cobalt International Energy, Inc.)
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service Executed original of process) has accepted its appointmentthe Advisory Mandate letter.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent Lender considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Relevant Document or for the validity and enforceability of any Finance Relevant Document.
(dc) The Original Financial Statements of each Obligor.
(d) A copy of the Additional Guarantorinterim financial statements of the Group for the nine months ended 30 September 2011.
(e) A certificate of an Authorised Signatory Evidence that the fees, costs and expenses then due from the finance department Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
(f) Confirmation from the Lender that it has carried out and is satisfied with the results of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect all necessary “know your customer” or other similar checks under all applicable laws and regulates pursuant to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes the Relevant Documents.
(g) Confirmation from the Lender that it has received each of this certificate, “Solvent” means, with respect the following documents in form and substance satisfactory to any Person, that such Person (a) owns and will own assets the fair saleable value of which are it
(i) greater than a copy of the total amount Fifth Modification Agreement duly executed by each party to it accompanied by a certificate issued by the Borrower that the process for MOFCOM approval of its debts and liabilities, subordinated, contingent or otherwise; and the Fifth Modification Agreement has been initiated;
(ii) greater than a copy of a Reserve Report dated on or around the amount that will be required to pay date of this Agreement;
(iii) legal memorandum issued by Xxxxx & XxXxxxx regarding the probable extension of exploration period under the Production Sharing Contract;
(iv) a copy of the Expenditure Schedule;
(v) evidence of appointment of process agent under the Account Charge Agreement; and
(vi) a copy of a financial forecast for each Obligor for the 2 years following the date of this Agreement including, without limitation, a cash flow projection showing:
(A) each Obligors' projected liabilities for such period; and
(B) all sources of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably funds available to it; each Obligor to meet such projected liabilities in such period. SCHEDULE 2
PART I Utilisation Request Far East Energy (b) has capital Bermuda), Ltd. - U.S.$25,000,000 Facility Agreement
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms: Proposed Utilisation Date: [________] or, if that is not unreasonably small a Business Day, the next Business Day) Amount: [________] or, if less, the Available Commitment
3. We confirm that each condition specified in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; Clause 4.2 (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (dFurther conditions precedent) is not, or is not deemed to be, in general default satisfied on the date of its obligations pursuant this Utilisation Request.
4. The proceeds of this Loan should be credited to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)Disbursement Account.
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service Copies of process) has accepted its appointmentthe executed Charter Contracts and the latest Valuation Reports.
(b) In relation to any Additional Borrower incorporated in Spain, a A copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional BorrowerGroup Structure Chart.
(c) Copies of the executed Finance Documents by all parties thereto.
(d) Evidence that all fees, costs and expenses (including legal fees) due from the Borrowers pursuant to Clause 6 (Fees, Costs and Expenses) of this Agreement have been paid or will be paid by the Effective Date.
(e) A certificate signed by an authorized signatory of the Borrowers stating that, upon the Effective Date, (i) no member of the Group will have any Financial Indebtedness other than Permitted Financial Indebtedness and each member of the Group will have (ii) no Encumbrance existing in relation to any asset of any member of the Group other than any Permitted Encumbrance.
(f) Evidence satisfactory to the Lender that the Security has been or will be perfected in accordance with all applicable laws on the Effective Date and constitutes valid security with the ranking it is expressed to have.
(g) Copies of all relevant insurance policies and evidence that these are in full force and effect.
(h) All requested information required pursuant to the obligations of the Lender, together with any other additional documents, records and information that the Lender may be required to obtain, verify or review pursuant to the terms of any other applicable law or regulation.
(i) All documentation or information on assets required to be provided under any Security Documents.
(j) A copy of any other Authorisation authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be Lender notifies the Borrowers is necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance DocumentDocuments.
(dk) The Original Financial Statements of Evidence reasonably satisfactory to the Additional GuarantorLender that all governmental and regulatory consents and other clearances (including but not limited to tax clearances) and all third party consents and approvals necessary in connection herewith or other competition or regulatory authority have been obtained.
(el) A good standing certificate of an Authorised Signatory from the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)each Obligor.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (FreeSeas Inc.)
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service of process) the Finance Documents has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent any Lender considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Restructuring Document or for the validity and or enforceability of any Finance Restructuring Document.
(c) Payment of all fees, costs and expenses of the Finance Parties associated with the negotiation, preparation, due diligence, documentation, administration and closing of the Restructuring Documents and the transactions contemplated therein, including payment:
(i) in cash of the Effective Date Fee Payment,
(ii) in cash of the COFACE Additional Insurance Premium due and payable at the Effective Date; and
(iii) all fees and expenses of the Finance Parties and their professional advisors, including, without limitation, any completion fees payable to FTI Consulting, Inc. as approved by the Lenders and any other fees, costs and expenses of White & Case LLP and FTI Consulting, Inc.
(d) The Original Financial Statements Evidence of the Additional Guarantorrestructuring of the vendor financing agreements (including, amongst others, the Hxxxxx and Ericsson vendor financings) in terms satisfactory to the Lenders.
(e) A certificate Satisfaction of an Authorised Signatory from all the finance department of that Additional Obligor if it is a U.S. Guarantor stating that the respective company is Solvent after giving effect conditions precedent to the initial Loans, Effective Date referred to in Clause 7.1 (Further Utilisation of Facilities).
(f) Receipt by the application COFACE Agent of the proceeds evidence referred to in Clause 7.2 (Contingent Equity and DSRA Funds).
(g) Receipt by the COFACE Agent of a comfort letter addressed to it from Jxxxx Xxxxxx III.
(h) Receipt by the COFACE Agent of a letter addressed to it from Thermo and the beneficiary of the Loans in accordance with Clause 3 (Purpose) and the payment ultimate owner of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are Thermo acknowledging that:
(i) greater than the total amount Lenders have requested the provision of its debts the financial statements (or equivalent document) of Thermo and liabilitiescertain “Know Your Customer” documentation in respect of the “Jxxxx Xxxxxx Revocable Trust dated January 1, subordinated1997”, contingent or otherwisewhich have not been provided by Thermo on the basis that such documents are not available; and and
(ii) greater than if a Lender is obliged by its compliance reporting requirements to report the amount that will be unavailability of the financial statements (or equivalent document) of Thermo or such “Know Your Customer” documentation, Thermo and the ultimate owner of Thermo agree to take all such action required to pay release the probable liabilities relevant Lender from any potential liability that may be asserted against it if Thermo or the ultimate owner of its then existing debts, Thermo (as beneficiary of the above-mentioned trust) suffers any negative consequences due to such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available documents not being provided to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to beLenders, in general default of its obligations pursuant such form as shall be acceptable to the Mexican Ley de Concursos MercantilesCOFACE Agent. In computing the amount of contingent or unliquidated liabilities at any timeSchedule 4 Amended and Restated Facility Agreement See Exhibit 10.3 to Current Report on Form 8-K dated August 22, such liabilities shall be computed at the amount that, in light of all the facts 2013 Schedule 5 Amended and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liabilityRestated Accounts Agreement 1. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable Definitions and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprisesInterpretation 57 2. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (the “Facilities Agreement”)Appointment 61
Appears in 1 contract
Samples: Global Deed of Amendment and Restatement (Globalstar, Inc.)
Other documents and evidence. (a) Evidence that on or prior to the Effective Date, Ultrapetrol shall have terminated any agreement related to the Offshore Business to which Ravenscroft Ship Management Ltd. and/or Ravenscroft Ship Management Inc. is a party (including, without limitation, any ship management agreement).
(b) Evidence that any process agent referred to in Clause 38.2 (Service of process) any New Finance Document has accepted its appointment.
(bc) In relation Any information reasonably required by any Finance Party in order to enable it to comply with any Additional Borrower incorporated in Spain, "know your client" or other money laundering checks it is required to carry out and completion of any such checks by each Finance Party and evidence that the identity of persons who ultimately control a copy majority of form PE-1 stamped by the Bank share capital of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) the Company is satisfactory to the accession of such Additional BorrowerFinance Parties.
(cd) All representations and warranties contained herein shall be true and correct in all material respects (without duplication of any materiality qualifiers therein (except as such representations and warranties specifically relate to a given date or period, in which case, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the date may be)). No Potential Event of Default (as defined in any Amended Facility Agreement, the Amended Guarantee Facility Agreement or this Agreement) or Event of Default (as defined in any Amended Facility Agreement, the Amended Guarantee Facility Agreement or this Agreement) shall have occurred or be continuing as of the Effective Date immediately after giving effect thereto.
(e) Evidence that the fees, costs and expenses then due from the Obligors under the Finance Documents have been paid.
(f) A copy of any other Authorisation authorization or other document, opinion or assurance which the Facility Administrative Agent (acting on the instructions of the Lenders, acting reasonably) considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any New Finance Document or for the validity and enforceability of any New Finance Document.
(dg) The Original Financial Statements (i) UP Offshore Bahamas shall have provided to the Agents the definitive documentation related to the Offshore Business Spinoff (including, without limitation, (a) the Investment Agreement, any share purchase agreement or other acquisition agreements of similar purpose, (b) all documentation related to the implementation of the Additional GuarantorOffshore Business Spinoff through any chapter 11 case commenced by Ultrapetrol or any Non-Offshore Entity, including any tax structuring memo, step plan or other documentation of similar purpose, if any, and (c) the Organizational Documents of Holdings (which Organizational Documents shall, among other things the Agents may require in their reasonable discretion, (x) comply with the Ringfencing Requirements and provide that Holdings is a special purpose vehicle formed for the limited and exclusive purpose of holding equity in UP Offshore Bahamas and (y) that Holdings is not permitted, except with respect to any liabilities and rights under the Allocation Agreement, to incur liabilities to, or any rights against, Ultrapetrol or any Non-Offshore Entity) and (ii) the Agents shall have approved the form and substance of all such documentation (which approval shall not be unreasonably withheld, delayed or conditioned).
(eh) A certificate of UP Offshore Bahamas shall have provided an Authorised Signatory from updated 12‑month business plan for the finance department of that Additional Obligor if it is calendar year beginning on the Effective Date through its first anniversary, broken down monthly, including projected cash receipts and disbursements, Operating Expenses on a U.S. Guarantor stating that the respective company is Solvent after giving effect Ship-by-Ship basis and Direct Overhead Expenses and other administrative expenses, in form and substance consistent with prior business plans provided to the initial LoansAgents, the application of the proceeds of the Loans in accordance with Clause 3 (Purpose) and the payment of all estimated legalidentifying potential cost saving measures, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreement. For purposes of this certificate, “Solvent” meansif any, with respect to any Person, that such Person the reducing Operating Expenses and Direct Overhead Expenses (a) owns and will own assets the fair saleable value of which are "Business Plan").
(i) greater The original of any mandates or other documents required in connection with the opening or operation of the Deposit Accounts.
(j) No Offshore Entity has declared, authorized, made or paid any dividends, return of capital or any other distribution, payment or delivery of property or cash to Ultrapetrol, UABL, any River Supporting Party (as defined in the Restructuring Support Agreement) or their respective equity holders or subsidiaries (other than any Offshore Entity), or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for value, any interest of any class or series of such Offshore Entity's Equity Interests (or acquired any rights, options or warrants relating thereto), or repaid any subordinated loans to equity holders or set aside any funds for any of the total amount foregoing purposes at any time during the period from the signing of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following Restructuring Support Agreement until the Effective Date; .
(ck) does not intend The Company shall have provided a summary of sources and uses and Funds Flow Statement in form and substance reasonably acceptable to incur the Agents.
(l) On or prior to the Effective Date, UP Offshore Bahamas shall have delivered, for the Fiscal Quarter in which the Effective Date occurs, a Cash Flow and does not believe that it will incur debts beyond its ability Overhead Expenses Report (the "Effective Date Report") with respect to pay such debts as they become due; and the period from January 1, 2017 (d) is not, or is not deemed to beor, in general default the case of its obligations pursuant Severance Costs, October 1, 2016) until the date which is the last day of the month ending at least 15 days prior to the Mexican Ley de Concursos Mercantiles. In computing Effective Date (it being understood that the amount summary of contingent or unliquidated liabilities at any time, such liabilities account balances contained therein shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets balances as of the applicable entity are sold with Effective Date).
(m) On or prior to the Effective Date, UP Offshore Bahamas shall have delivered to the Administrative Agent cash flow projections (including a balance sheet and statement of profit and loss and cash flow) of UP Offshore Bahamas and its subsidiaries in reasonable promptness in an arm’s length transaction under present conditions detail for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated [—] (calendar year in which the “Facilities Agreement”)Effective Date occurs.
Appears in 1 contract
Other documents and evidence. (a) Evidence that any agent for service of process agent referred to in Clause 38.2 39.2 (Service of process) ), if not an Obligor, has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent reasonably considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(dc) The Original Financial Statements of the Additional GuarantorBorrower and CME Ltd.
(d) Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
(e) A certificate group structure chart of an Authorised Signatory from the finance department Group describing legal ownership of that Additional Obligor if it is each member of the Group and a U.S. Guarantor stating certification by the Borrower that the respective company information contained therein is Solvent after giving effect correct and complete as at a date no earlier than the date of this Agreement.
(f) The Business Plan approved by the Borrower.
(g) Copies of the insurance policies of the Borrower and its Subsidiaries.
(h) The legal due diligence report in a form acceptable to the initial LoansAgent dated 25 April 2005 prepared by Wolf Xxxxxx relating to the Group and addressed to, and/or capable of being relied upon by, the application of Arranger and the other Finance Parties.
(i) Evidence that the Existing Facility will be repaid in full from the proceeds of the Loans first Utilisation hereunder and evidence that all security granted in accordance relation to the Existing Facility will be released immediately following such repayment of the Existing Facility.
(j) Evidence of the unconditional positive advice of each relevant works council which has jurisdiction over the transactions entered into by CME Media Enterprises B.V. as contemplated by this Agreement and any other Finance Document or confirmation by CME Media Enterprises B.V. that there is no (central) works council ((centrale) ondernemingsraad) with Clause 3 (Purpose) and jurisdiction over the payment of all estimated legal, accounting and other fees related to transactions as envisaged by this Agreement and the consummation of the other transactions contemplated by this AgreementFinance Documents. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] To: [Agent] Dated: Dear Sirs dated Sirs
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms: Proposed Utilisation Date: o (or, if that is not a Business Day, the next Business Day) Currency of Loan: EUR Amount: o or, if less, the Available Facility Interest Period: o
3. We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [—] account].
5. This Utilisation Request is irrevocable. [name of Borrower]
1. The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Financial Services Authority (or any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the “Facilities Agreement”)"Additional Cost Rate") for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Agent as follows: [ E x 0.01 Per cent. Per annum. ] Where:
Appears in 1 contract
Samples: Facility Agreement (Central European Media Enterprises LTD)
Other documents and evidence. (a) Evidence that any the process agent referred to in Clause 38.2 33.2 (Service of processRecourse to courts) has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) Lender consider to be necessary or desirable (if it has notified the Additional Obligor and the Company Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(c) The Financial Statements.
(d) The Original Financial Statements of Evidence that the Additional Guarantorfees, costs and expenses then due from the Borrower pursuant to Clause 10 (Fees) and 15 (Costs and Expenses) have been paid by the first Utilisation Date.
(e) A certificate copy of an Authorised Signatory from the finance department deal passport of that Additional Obligor if it is the Borrower (in the form established by Instruction No. 117-I of the Central Bank of the Russian Federation dated 15 June 2004) accepted and duly certified by a U.S. Guarantor stating that Russian authorised bank and copies of all other documents submitted by the respective company is Solvent after giving effect Borrower to the initial Loans, the application of the proceeds of the Loans Russian authorised bank in accordance with Clause 3 applicable Russian currency control regulations, as the Lender may reasonably require (Purposeor written confirmation from ING Bank (Eurasia) and the payment of ZAO that all estimated legal, accounting and other fees related documents required to this Agreement and the consummation obtain such deal passport have been duly submitted to it by or on behalf of the Borrower).
(f) Such other transactions contemplated by this Agreementdocuments or evidence which the Lender may reasonably require. For purposes of this certificate, “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater than the total amount of its debts and liabilities, subordinated, contingent or otherwise; and (ii) greater than the amount that will be required to pay the probable liabilities of its then existing debts, as such debts become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Date; (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due; and (d) is not, or is not deemed to be, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantiles. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. For the purposes of this definition “fair saleable value” means the aggregate amount of net consideration (giving effect to reasonable and customary costs of sale and taxes) that could be expected to be realized if the aggregate assets of the applicable entity are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises. REQUESTS From: [Each relevant Borrower] Mobile TeleSystems Open Joint Stock Company To: [Agent] European Bank for Reconstruction and Development Dated: Dear Sirs dated 1 We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. 2 We wish to borrow a Loan on the following terms: Proposed Utilisation Date: [ ] or, if that is not a Business Day, the next Business Day Amount: [ ] or, if less, the Available Commitment 3 We confirm that each condition specified in Clause 4.4 (Further conditions precedent) is satisfied on the date of this Utilisation Request. 4 The proceeds of this Loan should be credited to [—] (specify bank account of the “Facilities Borrower]. 5 This Utilisation Request is irrevocable. Mobile TeleSystems Open Joint Stock Company By: By: Name: Name: Title: Title: Chief Accountant To: European Bank for Reconstruction and Development From: Mobile TeleSystems Open Joint Stock Company Dated: Dear Sirs We refer to the Agreement”). This is a Compliance Certificate. Terms defined in the Agreement have the same meaning in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
1 [ We confirm that no Default is continuing.]*
Appears in 1 contract
Other documents and evidence. (a) Evidence that any process agent referred to in Clause 38.2 (Service of process) has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain, a copy of form PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a Financial Operation Number (“NOF”) to the accession of such Additional Borrower.
(c) A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers (after having taken appropriate legal advice) to be necessary or desirable (if it has notified the Additional Obligor and the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
(d) The Original Financial Statements of the Additional Guarantoreach Original Obligor.
(eb) A certificate of an Authorised Signatory Evidence that the fees then due from the finance department Company pursuant to Clause 12 (Fees) have been paid or will be paid by the first Utilisation Date.
(c) Evidence that the Company has given notice of that prepayment and cancellation pursuant to, and to the extent permitted under, the Existing Facilities and has delivered an authorisation to the Agent to apply the proceeds of the First Utilisation hereunder in discharge of all outstandings under the Existing Facilities. Back to Contents Part II Conditions Precedent required to be delivered by an Additional Obligor
1. An Accession Letter, duly executed by the Additional Obligor if it and the Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. Each Obligor which is a U.S. Guarantor Group Company, a certificate of the Chief Financial Officer of such Obligor stating that the respective company is Solvent after giving effect to the initial Loans, the application of the proceeds of the Loans thereof in accordance with Clause 3 (Purpose) and the payment of all estimated legal, accounting and other fees related to this Agreement and the consummation of the other transactions contemplated by this Agreementhereby. For purposes of this certificate, “"Solvent” means, " means with respect to such Obligor on any Person, date of determination that such Person (a) owns and will own assets the fair saleable value of which are (i) the property of such person is greater than the total amount of its debts liabilities (including contingent and unliquidated liabilities, subordinated, contingent or otherwise) of such person; and (iib) greater the present fair saleable value of the assets of such person is not less than the amount that which will be required to pay the probable liabilities liability of such person on its then existing debts, debts as such debts they become absolute and matured and considering all financing alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation to its business as presently conducted and as proposed to be conducted following the Effective Datemature; (c) such person does not intend to incur to, and does not believe that it will will, incur debts or liabilities beyond its such person's ability to pay as such debts as they become dueand liabilities mature; and (d) is not, or such person is not deemed engaged in a business or transaction, and is not about to beengage in a business or transaction, in general default of its obligations pursuant to the Mexican Ley de Concursos Mercantilesfor which such person's property would constitute unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall will be computed at the amount thatwhich, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or and matured liability.
4. For A copy of a resolution of the purposes board of this definition “fair saleable value” means directors of the aggregate amount of net consideration Additional Obligor:
(giving effect a) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;
(b) authorising a specified person or persons to reasonable execute the Accession Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and customary costs of sale and taxesnotices (including, in relation to an Additional Borrower, any Utilisation Request) that could be expected to be realized if signed and/or despatched by it under or in connection with the aggregate assets Finance Documents.
5. A specimen of the applicable entity are sold signature of each person authorised by the resolution referred to in paragraph 4 above.
6. A copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party if required by the laws of its jurisdiction of incorporation provided that no such resolution will be required for an Obligor incorporated in England and Wales. Back to Contents
7. A certificate of the Additional Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
8. A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Part II of Schedule 3 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.
9. A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary in connection with reasonable promptness in an arm’s length transaction under present conditions the entry into and performance of the transactions contemplated by the Accession Letter or for the sale validity and enforceability of assets any Finance Document as regards the Additional Obligor.
10. If available, the latest audited financial statements of comparable business enterprisesthe Additional Obligor.
11. A legal opinion of Xxxxxxxx Chance, legal advisers to the Agent in England.
12. If the Additional Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Additional Obligor in the jurisdiction in which the Additional Obligor is incorporated.
13. If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the process agent specified in Clause 38.2 (Service of Process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor. Back to Contents SCHEDULE 4 REQUESTS From: [Each relevant BorrowerBorrower]/[The Company] To: [Agent] Dated: Dear Sirs dated [—We refer to the Facilities Agreement. This is a Utilisation Request. Terms defined in the Facilities Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
1. We request a Utilisation by way of a Loan on the following terms: Proposed Utilisation Date: [ ] (or, if that is not a Business Day, the “Facilities Agreement”)next Business Day) Currency of Loan: [ ] Amount: [ ] or, if less, the Available Facility Interest Period: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further Conditions Precedent) is satisfied on the date of this Utilisation Request.
3. The proceeds of this Loan should be credited to [account].
4. This Utilisation Request is irrevocable. ………………………………… authorised signatory [for]/[by] [name of relevant Borrower]/[The Company on behalf of [name of relevant Borrower]] Back to Contents SCHEDULE 5 MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the "Additional Cost Rate") for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan: AB + C (B – D) + E × 0.01 100 – (A + C) per cent. per annum
(b) in relation to a Loan in any currency other than sterling: E × 0.01 300 per cent. per annum. Where:
Appears in 1 contract
