UNDERTAKINGS BY THE BORROWER. The Borrower undertakes to the Scottish Ministers that throughout the Loan Period it shall:
10.1 deliver to the Scottish Ministers such information as the Scottish Ministers may reasonably require including the following:
10.1.1 any changes in key personnel or office bearers of the Borrower;
10.1.2 monthly financial reports including a profit and loss, balance sheet and actual cashflow against budget (to be submitted within one month of the end of the relevant month and in a format acceptable to the Scottish Ministers), such monthly financial reports to include details of the Permitted Fees and all details in relation thereto;
10.1.3 annual audited accounts to be received no later than nine months after the end of the relevant financial year, other than for the year ended 31 December 2016 which shall be received by 31 March 2018;
10.1.4 within 30 days after the beginning of each financial year an updated Business Plan which includes an updated Financial Model;
10.1.5 as soon as reasonably practicable after the same become available (but in any event within 30 days of the month end to which the management accounts relate) management accounts, such management accounts to be accompanied by commentary in reasonable detail on the financial performance of the Borrower, a build update report on the build out of vessels 801 and 802 plus cost overruns and other issues, details of cost estimations in connection therewith and any such other information as relevant to the delivery of the vessels and to the running of the business.
10.1.6 an annual operating budget consistent with the Financial Model within 30 days after the beginning of each financial year.
10.2 maintain its existence and carry on its activities in accordance with its constitutional documents substantially in the form carried on as at the date of this Agreement and obtain and maintain in force all licences, consents, permits and insurances necessary for its business and assets;
10.3 not amend its constitutional documents without the prior written consent of the Scottish Ministers, which consent shall not be unreasonably withheld
10.4 take all steps and actions for the purpose of perfecting and giving effect to the terms hereof;
10.5 not acquire any company or any shares in any company or create any Subsidiary nor enter into any partnership or joint venture with any party without the consent of the Scottish Ministers (such consent not to be unreasonably withheld or delayed);
10.6 supply to the Scottish...
UNDERTAKINGS BY THE BORROWER. 5.1 The Borrower undertakes to the Lender that until all the Loans have been repaid in full by the Borrower to the Lender:
5.1.1 the Borrower shall (immediately upon it becoming aware of such occurrence) notify the Lender of the occurrence of any Event of Default and of any other event which, with the giving of notice or lapse of time or both, might constitute an Event of Default and at the same time inform the Lender of any action taken or proposed to be taken in connection with that Event of Default;
5.1.2 the Borrower will continue its business, being the conduct of mining operations, including but not limited to the re-treatment of sand dumps, slime dumps and archive material deposits;
5.1.3 the Borrower shall maintain in full force and effect all authorisations, approvals, licences, registrations, consent or declarations from all legislative bodies of government, ministries, agencies or other authorities required by the laws of South Africa or otherwise appropriate in order for the Borrower-
5.1.3.1 to incur the obligations expressed to be assumed by it in or pursuant to this Memorandum;
5.1.3.2 to execute and deliver all other documents and instruments to be delivered by it pursuant to this Memorandum;
5.1.3.3 to perform and observe the terms and provisions of this Memorandum;
5.1.3.4 to make all payments expressed to be required under this Memorandum; and
5.1.3.5 to render this Memorandum legal, valid, binding, enforceable and admissible in evidence.
5.2 The Borrower shall promptly furnish the Lender with such evidence of authority, authenticated specimen signatures and other documents and information as the Lender may reasonably request, on the request of the Lender, and perform all such other acts as may be necessary to carry out the intent of this Memorandum.
UNDERTAKINGS BY THE BORROWER. The Borrower undertakes to the Scottish Ministers that throughout the Loan Period it shall:
10.1 deliver to the Scottish Ministers such information as the Scottish Ministers may reasonably require including the following:
10.1.1 any changes in key personnel or office bearers of the Borrower;
10.1.2 [REDACTED]
10.1.3 [REDACTED]
10.1.4 [REDACTED]
10.1.5 [REDACTED]
10.1.6 [REDACTED].
10.2 maintain its existence and carry on its activities in accordance with its constitutional documents substantially in the form carried on as at the date of this Agreement and obtain and maintain in force all licences, consents, permits and insurances necessary for its business and assets;
10.3 not amend its constitutional documents without the prior written consent of the Scottish Ministers, which consent shall not be unreasonably withheld
10.4 take all steps and actions for the purpose of perfecting and giving effect to the terms hereof;
10.5 [REDACTED]
10.6 [REDACTED]
10.7 immediately upon becoming aware of it, inform the Scottish Ministers of the occurrence of an Event of Default or Potential Event of Default (and the steps, if any, being taken to remedy it);
10.8 not incur any Financial Indebtedness other than Permitted Financial Indebtedness;
10.9 operate each Account and any other bank account held by it in accordance with the Financial Transparency (EC) Regulations 2009;
10.10 [REDACTED]
10.11 not to create or attempt to create or allow to be created or to exist any security, charge (whether fixed or floating) or lien of any kind without the prior written consent of the Scottish Ministers, other than a Permitted Security Right;
10.12 not to make any loans or advance or enter into any guarantee or indemnity other than in the ordinary course of business unless with the prior consent of the Scottish Ministers;
10.13 [REDACTED]
10.14 promptly upon a request by the Scottish Ministers, supply to the Scottish Ministers a certificate signed by two of its directors or senior officers on its behalf certifying that no Event of Default is continuing (or if an Event of Default is continuing, specifying the Event of Default and the steps, if any, being taken to remedy it);
UNDERTAKINGS BY THE BORROWER. 4.1 Within the term of this Agreement, the Borrower irrevocably undertakes that it will, in the capacity of Borrower Company’s shareholder, cause Borrower Company to:
4.1.1 Fully comply with the provisions of Exclusive Purchase Option Agreement and Exclusive Business Cooperation Agreement not do or omit to be done any act that affects the validity and enforceability thereof.
4.1.2 At the request of the Lender (or its designee), enter into the business cooperation contract/agreement with the Lender (or its designee) in time and guarantee the strict performance of any such contract/agreement;
4.1.3 At the request of the Lender, provide the Lender with all the information on its operations and financial conditions;
4.1.4 Inform promptly the Lender A of any actual or threatened litigation, arbitration or administrative proceedings in connection with its assets, business and income;
4.1.5 At the request of the Lender, appoint any person nominated by the Lender as the director of Borrower Company.
4.2 The Borrower undertakes that within the term of this Agreement, it shall:
4.2.1 Try its best to cause Borrower Company to continue to carry on the Main Businesses;
4.2.2 Fully comply with the provisions of this Agreement, Power of Attorney, Equity Pledge Agreement and Exclusive Purchase Option Agreement, perform all its obligations hereunder and thereunder and not do or omit to be done any act that affects the validity and enforceability hereof and thereof.
4.2.3 Except as provided in the Equity Pledge Agreement, not sell, transfer, mortgage or otherwise dispose of the legal or beneficial interest over, or cause any other security interest to be created on, the Borrower’s Equity;
4.2.4 Cause the shareholders’ meeting and/or board of directors of Borrower Company not to approve the sale, transfer, mortgage or other disposal of the legal or beneficial interest over, or the creation of any other security interest on, the Borrower’s Equity without the Lender’s prior written consent, other than to the Lender or its designee;
4.2.5 Cause the shareholders’ meeting or board of directors of Borrower Company not to approve Borrower Company to undertake any merger, consolidation, acquisition or investment with or in any person without the Lender’s prior written consent;
4.2.6 Promptly inform the Lender of any litigation, arbitration or administrative proceedings actual or threatened against the Borrower’s Equity;
4.2.7 Execute all such documents, do all such acts and put fort...
UNDERTAKINGS BY THE BORROWER. The Borrower undertakes and agrees with the Security Trustee in the terms of Clauses 9.1(d) to (f) mutatis mutandis.
UNDERTAKINGS BY THE BORROWER. 6.1 Unless the Lender otherwise consents in writing, during the term of this Deed the Borrower must:
(a) not make any material changes to its business or dispose of any of its core assets or undertakings;
(b) manage and conduct its business in the ordinary course of business and with all due care and in accordance with normal and prudent practice (having regard to the nature of the business and past practice and so as to comply with all applicable laws);
(c) use its best endeavours to maintain the profitability and value of its business;
(d) repair and maintain each of its assets;
(e) not subscribe or agree to subscribe for any equity interest in any party;
(f) not guarantee the obligations of or provide financial support to any party;
(g) not repay any loan in priority to payment of the Loan;
(h) not enter into any joint venture agreement or other arrangement which gives any party an interest in the profits of its business; and
(i) not grant any encumbrance to any party.
UNDERTAKINGS BY THE BORROWER. Until the Discharge Date, except:
(a) as permitted by Majority Banks; or
(b) in the case of paragraphs (i) and (ii) below, to the extent that the amount concerned is permitted to be paid by Clause 6.1 (Permitted payments), the Borrower shall not:
(i) pay, prepay or repay, or make any distribution in respect of or on account of, or purchase or acquire, any Subordinated Debt in cash or in kind and acknowledges that, until the Discharge Date, no such Subordinated Debt is or shall become due and payable;
(ii) give or permit to subsist any financial or other support (including, without limitation, the taking of any participation, the giving of any guarantee or indemnity or the making of any deposit) to any person in connection with any Subordinated Debt or to enable any person to do any of the things referred to in paragraph (i) above;
(iii) discharge any Subordinated Debt by set-off or any right of combination of accounts;
(iv) create or permit to subsist any Security over any of its assets for any Subordinated Debt;
(v) amend, vary, waive, release or supplement any term of any Subordinated Debt Document; or
(vi) take or omit any action whereby the ranking and/or subordination arrangements provided for herein may be impaired and if any such action is taken or omitted to be taken then the Sponsors shall remedy the same within ten (10) days.
UNDERTAKINGS BY THE BORROWER. 4.1 So long as any amount of the Secured Money is outstanding, the Borrower agrees that it will not, without the Lender's consent, dispose of (or agree to dispose of) all or a substantial part of its property (either in a single transaction or a series of transactions whether related or not and whether voluntarily or involuntarily) except disposals made in the ordinary course of its business for arms-length consideration and in exchange for other property of a comparable value (including cash).
4.2 So long as any amount of the Secured Money is outstanding, the Borrower agrees that it will not, without the Lender's approval, incur any financial indebtedness or create an Encumbrance or allow one to exist on the whole or substantially all of its present or future property except:
(a) to the extent that the amount outstanding under all such Encumbrances does not exceed one hundred thousand dollars (AUS$100,000.00) in aggregate; or
(b) as otherwise permitted under the Principal Agreement.
4.3 The Borrower has made full disclosure to the Lender of all information which would be material to a party in the position of the Lender.
UNDERTAKINGS BY THE BORROWER. 11.1 From the date of this Agreement and for so long as any sum remains outstanding or payable under the Transaction Documents, the prior written consent of the Lender shall be required before any action is taken by any Group Company in respect of the matters set out in Schedule 3.
11.2 The Borrower undertakes to procure and ensure that, so long as any sum remains outstanding or payable under the Transaction Documents:
(a) the proceeds from the Loan Facility shall be applied in accordance with Clause 4;
(b) it will, upon the occurrence of any Event of Default, immediately notify the Lender in writing of the same (and any steps being taken to remedy it);
(c) it will (and it will procure that each of the other Group Companies will) from time to time on request by the Lender do or procure the doing of all such acts and will execute or procure the execution of all such documents as the Lender may consider necessary or desirable for giving full effect to the Transaction Documents or securing to the Lender the full benefits of all rights, powers and remedies conferred upon the Lender by the Transaction Documents;
(d) it will (and it will procure that each of the other Group Companies will) take all reasonable steps to preserve the enforceability, perfection, preservation and ranking of the Share Pledge and other rights, powers and remedies conferred upon the Lender by the Transaction Documents;
(e) it will (and it will procure that each of the other Group Companies will) at all times comply in all respect with all Relevant Laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Transaction Documents;
(f) it will as soon as practicable after the signing of this Agreement, procure and provide to the Lender (i) evidence of report of this Agreement and the other relevant Transaction Documents to the Minister of Finance, the team of Offshore Commercial Loan (PKLN Team) and any other relevant regulatory agency in Indonesia, and evidence that the Borrower’s offshore borrowing plan (Rencana Utang Luar Negeri) has been filed for the current period in accordance with applicable Relevant Laws;
(g) it will (and it will procure that each of the other Group Companies will) from time to time on request by the Lender do or procure the doing of all such acts and will execute or procure the execution of all such documents as the Lender may consider necessary or desirable for giving full ef...
UNDERTAKINGS BY THE BORROWER. 13.1 T he Borro wer will p ro mp tly furnish to the Lender such informatio n in its possession or control as the Lender may request.
13.2 The Borro wer will obtain and pro mp tly renew from time to time, and will promptly furnish certified copies to the Lender of all such Authorizations as may be required under any applicable Law to enable it to perform its obligations under this Agreement or required for the validity or enforceability thereof and the Borrower shall comply with the terms of the same.
