Waivers and Further Agreements Any waiver of any terms or conditions of this Agreement shall not operate as a waiver of any other breach of such terms or conditions or any other term or condition, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision hereof; provided, however, that no such written waiver, unless it, by its own terms, explicitly provides to the contrary, shall be construed to effect a continuing waiver of the provision being waived and no such waiver in any instance shall constitute a waiver in any other instance or for any other purpose or impair the right of the party against whom such waiver is claimed in all other instances or for all other purposes to require full compliance with such provision. Each of the parties hereto agrees to execute all such further instruments and documents and to take all such further action as the other party may reasonably require in order to effectuate the terms and purposes of this Agreement.
Cooperation and Further Assurances Each party will cooperate with the other in fulfilling its obligations under this Plan and will provide such information and documentation as is reasonably requested by the other in carrying out the Plan's terms. Each party will provide such further assurances concerning the performance of its obligations hereunder and execute all documents for or in connection with the consummation of the Acquisition as, with respect to such assurances or documents, the other shall deem necessary or appropriate.
Representations and Undertakings 2.1. The Trust represents to the Distributor that all registration statements filed by the Trust with the SEC under the 1933 Act, with respect to Shares have been prepared in conformity with the requirements of the 1933 Act and rules and regulations of the SEC thereunder.
2.2. The Trust represents and warrants to the Distributor that any registration statement, when such registration statement becomes effective, will contain all statements required to be stated therein in conformity with the 1933 Act and the rules and regulations of the SEC; that all statements of fact contained in any such registration statement will be true and correct when such registration statement becomes effective; and that no registration statement, when such registration statement becomes effective, will include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust authorizes the Distributor and authorized banks, broker/dealers and other financial institutions to use any prospectus or statement of additional information in the form furnished from time to time in connection with the sale of Shares and represented by the Trust as being the then-current form of prospectus or then-current form of statement of additional information.
2.3. No Shares shall be offered by either the Distributor or the Trust under any of the provisions of this Agreement and no orders for the purchase or sale of Shares hereunder shall be accepted by the Trust if and so long as the effectiveness of the registration statement then in effect or any necessary amendments thereto shall be suspended under any of the provisions of the 1933 Act, or if and so long as a current prospectus, as required by Section 10(b) of the 1933 Act is not on file with the SEC; provided, however, that nothing contained in this paragraph 2.3 shall in any way restrict or have any application to or bearing upon the Trust’s obligation to repurchase Shares from any shareholder in accordance with the provisions of the Trust’s prospectus or Declaration of Trust.
2.4. The Trust agrees to advise the Distributor as soon as reasonably practicable of the issuance by the SEC of any stop order suspending the effectiveness of the registration statement then in effect or of the initiation of any proceeding for that purpose.
Confidentiality Undertaking You undertake (a) to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to your own confidential information, and (b) until the Acquisition is completed to use the Confidential Information only for the Permitted Purpose.
Continuity and Further Assurance 5.1 The provisions of the Finance Documents shall, save as amended in this deed, continue in full force and effect.
5.2 The Borrower shall, at the request of the Lenders and at its own expense, do all such acts and things necessary or desirable to give effect to the provisions of this deed.
WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS 6.1. The Supplier warrants, represents and undertakes to the Authority and to each of the Other Contracting Bodies for the duration of the Framework Period that:
6.1.1. it has full capacity and authority and all necessary consents to enter into and to perform its obligations under this Framework Agreement (including, where its procedures so require, the consent of any of its Holding Companies);
6.1.2. this Framework Agreement is executed by a duly authorised representative of the Supplier;
6.1.3. in entering into this Framework Agreement and any Call Off Contract (and until the expiry of each, respectively) it has not committed and will not commit any Fraud, and has and will continue to have no conflict of interest in relation to this Framework Agreement;
6.1.4. all information, statements, warranties and representations contained in and the Tender and (unless otherwise agreed) any other document which resulted in the award of this Framework Agreement to the Supplier are, as at the date hereof, true, accurate, and not misleading save as may have been specifically disclosed in writing to the Authority prior to the execution of this Framework Agreement; and hereafter, for the Framework Period, it undertakes that it will promptly advise the Authority of any fact, matter or circumstance of which it may become aware which would render any such information, statement or representation to be false or misleading;
6.1.5. it has not entered and will not enter into any agreement with any other person with the aim of preventing tenders being made or as to
6.1.6. it has not caused or induced and will not cause or induce any person to enter such agreement referred to in Clause 6.1.5;
6.1.7. it has not offered or agreed (and will not offer or agree) to pay or give any sum of money, inducement or valuable consideration directly or indirectly to any person for doing or having done or causing or having caused to be done any act or omission in relation to any other tender or proposed tender for Services under this Framework;
6.1.8. no claim is being asserted and no litigation, arbitration or administrative or regulatory proceeding is presently in progress, or, to the best of its knowledge and belief pending or threatened against it or any of its assets which will or might affect its ability to perform its obligations under this Framework Agreement and/or any Call Off Contract which may be entered into with the Authority or Other Contracting Bodies;
6.1.9. it is not and will not be subject to any contractual obligation, or bound by any Law or other requirement, compliance with which will be likely to have an adverse effect on its ability to perform its obligations under this Framework Agreement and/or any Call Off Contract which may be entered into with the Authority or Other Contracting Bodies;
6.1.10. it has obtained and will maintain all licences, authorisations, consents or permits required in relation to the performance of its obligations under this Framework Agreement and any Call Off Contract;
6.1.11. in connection with the exercise of its rights and performance of its obligations pursuant to this Framework Agreement (and without prejudice to its other obligations under this Framework Agreement) it will at all times use all reasonable endeavours to meet or exceed the Key Performance Indicators;
6.1.12. no proceedings or other steps have been taken and not discharged or dismissed (nor, to the best of their knowledge, are threatened) for the winding up of the Supplier or for its dissolution or for the appointment of a receiver, administrative receiver, liquidator, manager, administrator or similar officer in relation to any of the Supplier's assets or revenue;
6.1.13. as at the Framework Commencement Date, it has notified the Authority in writing of any Occasions of Tax Non-Compliance or any litigation that it is involved in that is in connection with any Occasions of Tax Non Compliance; and
6.1.14. in the three (3) years prior to the date of this Framework Agreement (or, if the Supplier has been in existence for less than three (3) years, in the whole of such shorter period) it has:
6.1.14.1. conducted all financial accounting and reporting activities in compliance in all material respects with the generally accepted accounting principles that apply to it in any country where it files accounts;
6.1.14.2. it has been in full compliance with all applicable securities laws and regulations in the jurisdiction in which it is established; and
6.1.14.3. it has not performed any act or made any omission with respect to its financial accounting or reporting which could have an adverse effect on the Supplier's position as an ongoing business concern or its ability to fulfil its obligations under this Framework Agreement or any Call Off Contract.
6.2. The Supplier shall promptly notify the Authority in writing:
6.2.1. of any material detrimental change in the financial standing and/or credit rating of the Supplier;
6.2.2. if the Supplier undergoes a Change of Control; and/or
6.2.3. of any circumstances suggesting that a Change of Control is planned or in contemplation, provided such notification does not contravene any Law.
6.3. Each time a Call Off Contract is entered into the warranties, representations and undertakings in Clause 6.1 shall be deemed to be repeated by the Supplier with reference to the circumstances existing at the time that they are deemed to be repeated.
6.4. For the avoidance of doubt, the fact that any provision within this Framework Agreement is expressed as a warranty shall not preclude any right of termination the Authority would have, had it not been so expressed, in respect of breach of that provision by the Supplier.
6.5. The Supplier acknowledges and agrees that:
6.5.1. once duly executed this Framework Agreement will constitute the legal, valid and binding obligations and rights of the Supplier and the Authority;
6.5.2. the warranties, representations and undertakings contained in this Framework Agreement are material and are designed to induce the Authority into entering into this Framework Agreement and to induce the Authority and each and every Other Contracting Body to enter into Call Off Contracts;
6.5.3. the Authority has been induced into entering into this Framework Agreement and in doing so has relied upon the warranties, representations and undertakings contained in this Framework Agreement; and
6.5.4. each Contracting Body will (amongst other things) on each and every occasion that it enters into a Call Off Contract be induced into doing so by, and in being so induced shall rely upon, the warranties, representations and undertakings contained in this Framework Agreement.
6.6. For the duration of the Framework Agreement and for a period of twelve (12) months after the termination or expiry of the Framework Agreement or, if later, all Call Off Contracts, the Supplier shall not employ or offer employment to any staff of the Authority or the staff of any Contracting Body who have been associated with the procurement and/or provision of the Services without Approval or the prior written consent of the relevant Contracting Body respectively.
6.7. In performing its obligations under this Framework Agreement and any Call Off Contract, the Supplier shall not (to the extent possible in the circumstances) discriminate between Contracting Bodies on the basis of their respective size.
Undertakings The Company shall comply with all the provisions of any undertakings contained and required to be contained in the Registration Statement.
Covenants and Undertakings 8.1 The Borrower undertakes, and shall procure that CCK undertakes, to use their best endeavours to procure a Liquidity Event as soon as practicable, and in any event no later than the Liquidity Event Long-Stop Date.
8.2 The Borrower hereby covenants with and undertakes to the Lender that, subject to disbursement of the First Drawing to the Borrower, and for as long as any amount is or may be outstanding under this Agreement or any part of the Convertible Loan remains outstanding or the Borrower continues to have any obligation hereunder:
(a) the Borrower shall make no grant of any loan or advance to any person, firm, body corporate or other business save in the ordinary course of business, without the prior consent of the Lender;
(b) the Borrower shall make no grant of any guarantee or create or issue any debenture, mortgage, charge or other security, without the prior consent of the Lender;
(c) the Borrower shall not issue, allot or create any share or loan capital and will not grant any right (conditional or not) to require the issuance, allotment or creation of a share in its capital, without prior consent of the Lender, which shall not be unreasonably withheld;
(d) the Borrower shall not declare, pay or make any dividend or other distribution in respect of the Shares, redeem none of such Shares and dispose of no evidence of indebtedness or other security of the Borrower without the prior consent of the Lender;
(e) the Borrower shall use its best efforts to procure that CCK shall deliver, or make available to, the Lender, a LOR on a quarterly basis, and each LOR shall be delivered or made available to the Lender by the twenty-first (21st) day of March, June, September or December (as the case may be) of the relevant calendar year;
(f) save for such information as the Borrower may in good fxxxx xxxx to be a trade secret or highly confidential and subject to the Lender providing the Borrower with at least thirty (30) days’ notice in writing, the Borrower shall make available to the Lender such information relating to the business and financial condition, properties, operations and prospects of the Borrower and its investments as the Lender may from time to time reasonably request, including but not limited to the following:
(i) the Borrower’s quarterly progress reports, its unaudited profit and loss statement, balance sheet and cash flow statement and its unaudited monthly management accounts (comprising balance sheets, profit and loss statements and cash flow statements);
(ii) the Borrower’s audited financial statements (comprising balance sheets, profit and loss statements, cash flow statements and the notes thereto); and
(iii) the Borrower’s annual operating budget, profit forecast, capital asset requirements and business plan, PROVIDED THAT the Lender shall not use such information provided by the Borrower other than for the purposes of evaulating the Lender’s Convertible Loan to the Borrower;
(g) the Borrower shall carry on and conduct its affairs and businesses, in a proper and efficient manner and obtain all necessary consents and comply with all laws relating to the carrying on of its business and keep or cause to be kept in good state of repair and condition in accordance with good commercial practice all its properties and assets, and save as agreed between the Borrower and the Lender, the Borrower shall not cease to conduct any of its business nor carry on any business fundamentally different from its business;
(h) the Borrower shall duly pay and discharge all rents, rates, assessments, taxes (including corporate tax, property tax, sales tax, goods and services tax, import tax, and other governmental, state and provincial taxes and levies) and all outgoings and all charges payable in respect of its assets or income prior to the date when penalties become attached thereto, and shall produce to the Lender on demand all receipts for such payments;
(i) the Borrower shall forthwith notify the Lender in writing of all material litigation, arbitration or administrative proceedings to which Borrower is or may become a party, in whatever capacity, which might have a material adverse effect on Borrower’s business, assets or financial condition after it has knowledge of such event or change or of such litigation, arbitration or administrative proceedings thereof, and the amount of contingent liability, if such amount is ascertainable;
(j) the Borrower shall promptly notify the Lender in writing within three (3) Business Days upon becoming aware of any event or change which has a material adverse effect on the Borrower or which is likely to have a substantial effect on its profits or businesses, such as a strike, lock-out, lay-off, suspension of work or any other event likely to have a material adverse effect on its business or operations;
(k) the Borrower shall duly furnish to the Lender as soon as practicable and in any event not later than five (5) days after they become effective, copies of all amendments to the Constitution of Borrower or other constitutional documents, each certified to be a true copy by a Director;
(l) the Borrower shall maintain, and shall procure the maintenance of, in full force and effect all governmental approvals, filings and recordings necessary or advisable in connection with this Agreement and shall obtain or make any additional governmental approvals, filings or recordings that become necessary or advisable in connection herewith or therewith (if any);
(m) the Borrower shall maintain a system of internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with the authorisations by the Board of Directors,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the accounting principles and practices and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorisation, and
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(n) the Borrower shall maintain the statutory books, books of account and other records of Borrower shall be maintained in accordance with all applicable laws and generally accepted international or Singapore accounting standards, principles and practices on a proper and consistent basis, comprise complete and accurate records of all information required to be recorded therein and that all accounts, documents and returns required by law to be delivered or made by the Borrower to the relevant authorities shall be duly delivered or made; and
(o) the Borrower shall notify the Lender of the occurrence of any Event of Default immediately upon becoming aware of it.
8.3 Any failure by CCK to furnish the LOR in accordance with Clause 8.2(e) above by the respective due dates will constitute a violation (the “First Violation”), and the Lender shall be entitled to deliver to the Borrower a notice in writing notifying the Borrower of the occurrence of such First Violation (the “First Violation Notice”) and:
(a) if the First Violation is not remedied within fourteen (14) Business Days from the date of such First Violation Notice (“Continuing Violation”); or
(b) upon the occurrence of a subsequent violation (“Second Violation”), the Borrower shall be liable to pay the Lender a default payment of [*****] (“Default Payment”) in respect of the Continuing Violation or the Second Violation (as the case may be) within seven (7) Business Days from the date the Lender notifies the Borrower of such Continuing Violation or Second Violation (as the case may be). For the avoidance of doubt, upon payment by the Borrower of the Default Payment, any subsequent failure(s) by CCK to furnish the LOR in accordance with Clause 8.2(e) shall constitute a fresh violation in accordance with this Clause 8.3.
8.4 The Borrower shall execute at its own expense all assurances and other things as are reasonably required or requested at any time, from time to time, by the Lender for giving effect to, and the full benefit of, the covenants contained or implied in this Agreement in favour of the Lender or to protect the Lender’s rights, powers and remedies hereunder or thereunder.
8.5 If after disbursement of the First Drawing, and as the case may be, the Second Drawing, and for as long as full repayment of the Convertible Loan remains outstanding, any event shall occur which results or may result in a breach by the Borrower of any of its obligations under this Clause 8, the Borrower hereby covenants to the Lender that it shall, upon becoming aware of the same, immediately notify the Lender in writing thereof and Borrower shall make all such investigations and/or do all such acts concerning the event or matter which the Lender may reasonably require.
Instruments of Further Assurance The Governmental Lender covenants that it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such supplements hereto, and such further acts, instruments and transfers as may be reasonably required for the better assuring, transferring, conveying, pledging, assigning and confirming unto the Fiscal Agent all and singular its interest in the property herein described and the revenues, receipts and other amounts pledged hereby to the payment of the principal of, premium, if any, and interest on the Funding Loan, at the expense of the Borrower, provided, however, that no such act or instrument shall change the essential economic terms of the Funding Loan. Any and all interest in property hereafter acquired which is of any kind or nature herein provided to be and become subject to the lien hereof shall and without any further conveyance, assignment or act on the part of the Governmental Lender or the Fiscal Agent, become and be subject to the lien of this Funding Loan Agreement as fully and completely as though specifically described herein, but nothing in this sentence contained shall be deemed to modify or change the obligations of the Governmental Lender under this Section 5.03. The Governmental Lender covenants and agrees that, except as herein otherwise expressly provided, it has not and will not sell, convey, mortgage, encumber or otherwise dispose of any part of its interest in the Pledged Security or the revenues or receipts therefrom. The Governmental Lender will promptly notify the Fiscal Agent, the Funding Lender Representative and the Servicer in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal process, litigation or administrative or judicial investigation against the Governmental Lender with respect to the Loans of which it has received written notice;
(ii) any change in the location of the Governmental Lender’s principal office or any change in the location of the Governmental Lender’s books and records relating to the transactions contemplated hereby;
(iii) the occurrence of any default or Event of Default of which the Governmental Lender has received written notice;
(iv) the commencement of any proceedings or any proceedings instituted by or against the Governmental Lender in any federal, state or local court or before any governmental body or agency, or before any arbitration board, relating to the Notes, of which it has received written notice; or
(v) the commencement of any proceedings by or against the Governmental Lender under any applicable bankruptcy, reorganization, liquidation, rehabilitation, insolvency or other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator, conservator, trustee or similar official shall have been, or may be, appointed or requested for the Governmental Lender or any of its assets relating to the Loans.
INFORMATION UNDERTAKINGS The undertakings in this Clause 20 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
