Executives Covenants The Executive agrees that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control during the Term, the Executive will remain in the employ of the Company until the earliest of (i) a date which is six (6) months from the date of such Potential Change in Control, (ii) the date of a Change in Control, (iii) the date of termination by the Executive of the Executive's employment for Good Reason or by reason of death, Disability or Retirement or (iv) the termination by the Company of the Executive's employment for any reason.
The Executive's Covenants The Executive agrees that, subject to the terms and conditions of this Agreement, in the event of a Potential Change in Control during the Term, the Executive will remain in the employ of the Company until the earliest of (i) a date which is six (6) months from the date of such Potential Change in Control, (ii) the date of a Change in Control, (iii) the date of termination by the Executive of the Executive’s employment for Good Reason or by reason of death, Disability or Retirement, or (iv) the termination by the Company of the Executive’s employment for any reason.
Purchaser’s Covenants THE PURCHASERS DO AND EACH OF THEM DOTH HEREBY COVENANT WITH THE VENDORS AND THE BUILDER as follows:
Independent Covenants This Lease shall be construed as though the covenants herein between Landlord and Tenant are independent and not dependent and Tenant hereby expressly waives the benefit of any statute to the contrary and agrees that if Landlord fails to perform its obligations set forth herein, Tenant shall not be entitled to make any repairs or perform any acts hereunder at Landlord’s expense or to any setoff of the Rent or other amounts owing hereunder against Landlord.
Pledgor’s Covenants At its own expense and until the Secured Obligations are fully discharged, Pledgor hereby undertakes as follows:
(a) To give the Pledgor 10 (ten) day prior notice of any call for a Company shareholders' and/or board of directors' meeting and subscribe, fully pay in and give the Pledgor, within three (3) days of issuance, all certificates evidencing new shares issued by the Company which are subject to the Pledge granted hereby. Should the Pledgor fail to perform a share subscription obligation, Pledgor shall notify the Pledgee of such circumstance by means of the abovementioned notice, in order to enable the Pledgee, to exercise such rights in the name and on behalf of the Pledgor.;
(b) Not to convey, assign, transfer or otherwise dispose by any cause or title of the Pledged Stock;
(c) Not to grant further property rights in, pledges, liens and/or encumber the Pledged Stock or otherwise affect them to restrictions or charge them in any manner without the prior written consent of the Pledgee;
(d) To furnish to the Pledgee all documents requested by it or by such other person as the Pledgee may appoint for perfection of the Pledge granted hereby, and do and perform such other acts as may prove necessary to maintain the perfected security interest;
(e) Not to take or fail to take any action if such action might negatively affect any of the rights granted to the Pledgee hereunder, including, without limitation, any action or omission that may result in the Pledgor's interest participation decreasing to less than 80% (eighty per cent) of the capital of and voting rights in the Company;
(f) Should Pledgor vote for or take any other action to obtain an increase in the capital of the Company, Pledgor shall subscribe and pay in such number of shares as may be appropriate in proportion to its respective interest participation in the Company's capital.
(g) Not to call any meeting or vote on shareholders' meeting decisions aimed at effecting a merger, spin-off, dissolution or liquidation of the Company or an increase of its capital, issuance of new shares or exchange of existing ones, without the prior written consent of the Pledgee.
(h) Not to approve, propose or vote the declaration and/or payment of distributions or dividends of the Company without the prior written consent of the Pledgee.
(i) To ensure that the Company shall comply with all statutes, executive orders, ordinances and regulations applicable to it and to obtain and maintain in full force and effect all permits, licenses, certificates, and authorizations necessary for any activities and or transactions to be carried out by it.
(j) Not to amend the Company's by-laws or other governing and constitutive documents without the prior written consent of the Pledgee.
(k) Not to execute shareholders' agreements or voting trusts agreements or otherwise restrict the voting rights of the Pledged Stock, without the prior written consent of the Pledgee.
Independent Covenant 12 Section 10.06 Materiality............................................ 13
Further Assurances Covenants (a) The Company will not change its name, taxpayer identification number, organizational number, identity, jurisdiction of organization or corporate structure in any manner unless it shall have given the Holder thirty (30) days prior written notice thereof, executed and delivered to the Holder all financing statements and financing statement amendments which the Holder may request in connection therewith.
(b) The Company will not merge or consolidate into, or transfer any of the Collateral to, any other Person other than another Company, without the prior written consent of the Holder.
(c) The Company hereby authorizes Holder, its counsel or its representative, at any time and from time to time, to file financing statements and amendments that accurately describe the Collateral covered by such financing statements in such jurisdictions as Holder may deem necessary or desirable in order to perfect the security interests granted by Company under the Agreement. The Company will, from time to time, at its expense, execute, deliver, file and record any statement, assignment, instrument, document, agreement or other paper and take any other action that from time to time may be necessary, or that the Holder may request, in order to create, preserve, upgrade in rank (to the extent required hereby), perfect, confirm or validate the security interest granted hereunder or to enable the Holder to obtain the full benefits of the Agreement, or to enable the Holder to exercise and enforce any of its rights, powers and remedies hereunder with respect to any of the Collateral. To the extent permitted by law, Company hereby authorizes the Holder to execute and file financing statements, financing statement amendments or continuation statements without Company's signature appearing thereon. The Company agrees that a carbon, photographic, photostatic or other reproduction of the Agreement or of a financing statement is sufficient as a financing statement. The Company shall pay the costs of, or incidental to, any recording or filing of any financing statements, financing statement amendments or continuation statements concerning the Collateral.
(d) The Company will not permit any of its tangible assets which are part of the Collateral to be in the possession of any other Person, except to the extent that any tangible assets (for example, computer servers) are being managed by a third party as a part of the ordinary course of business of the Company.
(e) The Company will not (A) sell, transfer, lease, exchange, assign or otherwise dispose of, or grant any option, warrant or other right with respect to, any Collateral except the sale of inventory in the ordinary course or the sale or disposal of obsolete equipment; or (B) create, incur or suffer to exist any lien with respect to any Collateral, except for the permitted liens set forth on Schedule 3(e) hereof (the "Permitted Liens").
(f) The Company will, promptly upon request, provide to the Holder all information and evidence it may reasonably request concerning the Collateral, to enable the Holder to enforce the provisions of the Agreement.
(g) The Company will not file any amendment to or termination of a financing statement naming any Company as debtor and Holder as secured party, or any correction statement with respect thereto, in any jurisdiction.
Borrower’s Covenants 3.1 As and when he becomes, and for so long as he remains a shareholder of Borrower Company, Borrower covenants irrevocably that during the term of this Agreement, Borrower shall cause Borrower Company:
3.1.1 to strictly abide by the provisions of the Exclusive Option Agreement and the Exclusive Business Cooperation Agreement (“Exclusive Business Cooperation Agreement”) to which the Borrower Company is a party, and to refrain from any action/omission that may affect the effectiveness and enforceability of the Exclusive Option Agreement and Exclusive Business Cooperation Agreement.
3.1.2 at the request of Lender (or a party designated by Lender), to execute contracts/agreements on business cooperation with Lender (or a party designated by Lender), and to strictly abide by such contracts/agreements;
3.1.3 to provide Lender with all of the information on Borrower Company’s business operations and financial condition at Lender’s request;
3.1.4 to immediately notify Lender of the occurrence or possible occurrence of any litigation, arbitration or administrative proceedings relating to Borrower Company’s assets, business or income;
3.1.5 at the request of Lender, to appoint any persons designated by Lender as directors of Borrower Company;
3.2 Borrower covenants that during the term of this Agreement, he shall:
3.2.1 endeavor to keep Borrower Company to engage in its principle businesses;
3.2.2 abide by the provisions of this Agreement, the Power of Attorney, the Equity Interest Pledge Agreement (“Equity Interest Pledge Agreement”) and the Exclusive Option Agreement to which the Borrower is a party, perform his obligations under this Agreement, the Power of Attorney, the Equity Interest Pledge Agreement and the Exclusive Option Agreement, and refrain from any action/omission that may affect the effectiveness and enforceability of this Agreement, the Power of Attorney, the Equity Interest Pledge Agreement and the Exclusive Option Agreement;
3.2.3 not sell, transfer, mortgage or dispose of in any other manner the legal or beneficial interest in Borrower Equity Interest, or allow the encumbrance thereon of any security interest or the encumbrance, except in accordance with the Equity Interest Pledge Agreement;
3.2.4 cause any shareholders’ meeting and/or the board of directors of Borrower Company not to approve the sale, transfer, mortgage or disposition in any other manner of any legal or beneficial interest in Borrower Equity Interest, or allow the encumbrance thereon of any security interest, except to Lender or Lender’s designated person;
3.2.5 cause any shareholders’ meeting and/or the board of directors of the Borrower Company not to approve the merger or consolidation of Borrower Company with any person, or its acquisition of or investment in any person, without the prior written consent of Lender;
3.2.6 immediately notify Lender of the occurrence or possible occurrence of any litigation, arbitration or administrative proceedings relating to Borrower Equity Interest;
3.2.7 to the extent necessary to maintain his ownership of the Borrower Equity Interest, execute all necessary or appropriate documents, take all necessary or appropriate actions and file all necessary or appropriate complaints or raise necessary and appropriate defense against all claims;
3.2.8 without the prior written consent of Lender, refrain from any action /omission that may have a material impact on the assets, business and liabilities of Borrower Company;
3.2.9 appoint any designee of Lender as director of Borrower Company, at the request of Lender;
3.2.10 to the extent permitted by the laws of China, at the request of Lender at any time, promptly and unconditionally transfer all of Borrower Equity Interest to Lender or Lender’s designated representative(s) at any time, and cause the other shareholders of Borrower Company to waive their right of first refusal with respect to the share transfer described in this Section;
3.2.11 to the extent permitted by the laws of China, at the request of Lender at any time, cause the other shareholders of Borrower Company to promptly and unconditionally transfer all of their equity interests to Lender or Lender’s designated representative(s) at any time, and Borrower hereby waives his right of first refusal (if any) with respect to the share transfer described in this Section;
3.2.12 in the event that Lender purchases Borrower Equity Interest from Borrower in accordance with the provisions of the Exclusive Option Agreement, use such purchase price obtained thereby to repay the Loan to Lender; and
3.2.13 without the prior written consent of Lender, not to cause Borrower Company to supplement, change, or amend its articles of association in any manner, increase or decreases its registered capital or change its share capital structure in any manner.
LESSOR'S COVENANTS The Lessor covenants and agrees that, unless the Agent and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee for certain closing and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to the Agent, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent);
(g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(h) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease; and
(j) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any Leased Property resulting from such Lessor Liens.
Buyer’s Covenants Buyer hereby covenants as follows:
