Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement: (a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be); (b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK; (c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make: (i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and (ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture. 4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission): (a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or (b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein. 4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement). 4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released. 4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof. 4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same: (a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by (b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000. 4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 6 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement, Restructuring Support Agreement
Undertakings. 4.1 Subject The Beneficiary Member State undertakes, in relation to Clause 4.2General Government Debt, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor thatuntil such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, subject to if any, due under this Agreement (including the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakingsFacility Specific Terms) provided that, notwithstanding any other provision in this Agreementhave been fully paid:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve with the validity, existence or priority exception of any of its rights and Claims those encumbrances enumerated in Sub-paragraphs (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plana)(ii)(1) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make(a)(ii)(8) below:
(i) an Interim Distribution that is not less than US$75 million to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Notes Trustee Financial Assistance shall, at the same time, share pari passu and the Club Loan Agent pro rata in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelysuch security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the SFR Distribution following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the Notes Trustee original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be applied generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the Existing Indenture.MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
4.2 Nothing (c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole including the Facility Specific Terms) and absolute discretion) determines that such action (or omission):each Pre-Funding Agreement;
(ad) would be contrary to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable law or regulation or laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly its reputationvia the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; orand
(bh) would result in such Consenting Creditor incurring more generally, to indemnify and hold harmless EFSF on first demand from and against any Liability or waiving or releasing any legal or equitable rightsadditional interest, Claimscosts, causes of actionclaims, indemnitieslosses, Defenses or remediesdamages, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases liabilities and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein expenses (including in Schedule 8 (Term Sheet))legal fees, costs of investigation and any release granted value added tax or equivalent thereof) incurred or suffered by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest EFSF and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:which result from
(ai) any information which is received from the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities Beneficiary Member State in connection with implementation this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the Chapter 11 Planrepresentations, the Court Supervised Arrangement warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any RestructuringFacility Specific Terms; and/or (iii) any action, shall be acceptable to claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the Creditor Plan Proponents (as defined performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.MoU.
Appears in 6 contracts
Samples: Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably The custodian's undertakings The Custodian undertakes in favour of each other Consenting Creditor that, subject to that at all times during the terms, conditions and limitations set forth herein, Term it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementwill:
(a) no Consenting Creditor shall be required (notice of default) give notice in writing to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority Trustee and each Designated Rating Agency of it becoming aware of the occurrence of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)Custodial Transfer Event;
(b) HSBC-HK may(compliance with law)
(i) maintain in effect all qualifications, without limitationconsents, seek licenses, permits, approvals, exemptions, filings and registrations as may be required under any applicable law in order properly to take, refrain from taking perform or cause comply with its obligations under this Agreement;
(ii) comply with all Laws in connection with the provision of the Custodial Services where failure to be taken do so would have a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in connection with the provision of the Custodial Services so that the Trustee does not personally or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation capacity as trustee of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as Trust become liable to HSBC-HK without further obligation hereunder on the part of HSBC-HK;pay any Civil Penalty Payments.
(c) (Material Default) if a Material Default occurs in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant respect to a Chapter 11 PlanReceivable, take all reasonable action to assist the Servicer and the Trustee to enforce the relevant Receivable and the Receivable Rights;
(d) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:(Insurance Policies)
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent act in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account terms of any Interim Distributions or SFR Distributions that have not occurred at that time) Mortgage Insurance Policies to be applied in accordance with the Existing Indenture and extent applicable to the Club Loan Agreement, respectivelyCustodian; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, not do or omit to takedo anything which, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out omission of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or partieswhich, as the case may be, have agreed could be reasonably expected to prejudicially affect or limit its rights or the rights of the Trustee or the Servicer under or in respect of a Mortgage Insurance Policy to the terms extent those rights relate to a Receivable and the Receivable Rights;
(e) (notification) notify the Trustee, the Manager and the Servicer of any event which it reasonably believes is likely to have a Material Adverse Effect promptly after becoming aware of such event;
(xf) a budget or budgets for the Plan Debtors (which shall include all disbursements expected provide information and access on request) as soon as reasonably practicable after being requested so to be made do, provide information reasonably requested by the Plan DebtorsTrustee, the Manager or the Servicer, with respect to all matters relating to the Custodial Services and upon reasonable notice and at reasonable times permit the Trustee, the ------------------------------------------------------------------------------ Page (9) Custodian Agreement Xxxxx Xxxxx & Xxxxxxx ------------------------------------------------------------------------------ Manager or the Servicer to enter the Premises and inspect the Data Base in relation to each Relevant Trust and the Relevant Documents;
(g) (Report Record of Movements) provide the Trustee and the Manager on the last Business Day of each week a copy of an extract from the Record of Movements applicable to that week's movements of Relevant Documents;
(h) (comply with other obligations) comply with all its obligations under any Transaction Document to which it is a party;
(i) (pay taxes) subject to receiving payment from, or being reimbursed by, the relevant Obligor or being indemnified by the Trustee, pay all Taxes that relate to the Custodial Services (other than any Tax on, or measured by reference to, the income of a Trust or the Custodian) or where such Taxes are incurred due to the default or breach of duty by the Custodian, pay those Taxes itself or ensure those Taxes are paid;
(j) (not claim) not claim any Security Interest over any Asset;
(k) (comply with Supplementary Terms Notice) comply with any undertaking specified as an additional Custodian undertaking in a relevant Supplementary Terms Notice, including, without limitation, providing the Manager with any information referred to in that Supplementary Terms Notice;
(l) (insurances) ensure that the Premises are appropriately insured for fire and public risks, and that it has appropriate directors and officers insurance; and
(m) (Data Base) maintain the Data Base collected, held or stored by it in relation to each Relevant Trust and each Relevant Document and, subject to all applicable laws, provide the Trustee with access to the Data Base upon reasonable request and during normal business hours.
4.2 Material adverse effect
(a) In performing the Custodial Services the Custodian shall have regard to whether expressly provided for under what it does, or does not do, will have any Material Adverse Effect.
(b) The Custodian may ask the Restructuring Documents Trustee or otherwisethe Manager if any action or inaction on its part is reasonably likely to, for or will, have a Material Adverse Effect.
(c) The Custodian may rely upon any statement by the periods prior Trustee or the Manager that any action or inaction by the Custodian is reasonably likely to, or will, have a Material Adverse Effect.
(d) Subject to and after the Restructuring Effective Dateparagraph (a), the Custodian shall not be liable for a breach of this Agreement, or (y) other arrangements governing the terms and conditions be liable under which disbursements may be made any indemnity, in relation to any action or inaction on its part, where it has been notified by the Plan AdministratorTrustee or the Manager that the action or inaction is not reasonably likely to, such other parties and/or or will not have a Material Adverse Effect, unless the Plan Debtors (including any and all expenditures for counsel notification was caused by the fraud, negligence or other advisors), in each case, which shall be satisfactory to wilful default of the Creditor Plan Proponents, in their sole discretionCustodian.
Appears in 6 contracts
Samples: Custodian Agreement (Crusade Management LTD), Custodian Agreement (Crusade Management LTD), Custodian Agreement (Crusade Management LTD)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each of other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakingsundertakingsUndertakings) provided that, notwithstanding any other provision in this Agreement, :
(a) no Consenting Creditor shall be required to waive refrainwaive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes Notes. In (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(a) (c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or other thanor waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set contemplated by thisset forth in the Solicitation Plan, subject to any opt- opt-out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 5 contracts
Samples: Restructuring Support Agreement, Restructuring Support Agreement, Restructuring Support Agreement
Undertakings. 4.1 Subject The Beneficiary Member State undertakes, in relation to Clause 4.2General Government Debt, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor thatuntil such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, subject to if any, due under this Agreement (including the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakingsFacility Specific Terms) provided that, notwithstanding any other provision in this Agreementhave been fully paid:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve with the validity, existence or priority exception of any of its rights and Claims those encumbrances enumerated in Sub-paragraphs (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plana)(ii)(1) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make(a)(ii)10 below:
(i) an Interim Distribution that is not less than US$75 million to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Notes Trustee Financial Assistance shall, at the same time, share pari passu and the Club Loan Agent pro rata in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelysuch security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the SFR Distribution following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the Notes Trustee original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million; and
(9) any encumbrance granted by an agency of the Beneficiary Member State (other than the Debt Agency) to secure indebtedness incurred by it in the ordinary course of its business to finance the ordinary and customary activities of such agency and provided that the proceeds of such financing are not on-lent or otherwise made available to the central government; and
(10) any encumbrance (if any) granted under or resulting from any collateralised credit line or repo facility entered into by the Debt Agency for precautionary or liquidity management purposes. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be applied generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(i) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the Existing Indenture.MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
4.2 Nothing (ii) to utilise the EFSF Debt Securities received under the Bank Recapitalisation Facility only for the purpose of financing the recapitalisation of financial institutions in Spain by providing financing to FROB to subscribe Bank Capital Instruments issued by the financial institutions specified in the MoU in accordance with this Agreement and the MoU and not to sell, transfer, grant security over or otherwise deal with these EFSF Debt Securities other than in accordance with this Agreement and the MoU provided that prior to funds being disbursed to FROB or contributed to FROB by the Beneficiary Member State, EFSF shall require any Consenting Creditor have confirmed that it is satisfied in relation to take, or omit the legal instruments and documentation between the Beneficiary Member State and FROB setting out the legal basis of such contribution of funds to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):FROB by the Beneficiary Member State;
(aiii) would be contrary to any applicable law procure that FROB shall not use EFSF Debt Securities delivered to FROB under the Bank Recapitalisation Facility to subscribe for Bank Capital Instruments in a financial institution without the prior written approval of EFSF including confirmation by EFSF that it is satisfied in relation to the legal mechanism, instruments and documentation between FROB and the relevant financial institution setting out the terms on which FROB subscribes or regulation or might affect directly or indirectly its reputation; orpre-subscribes for Bank Capital Instruments in such financial institution;
(biv) would result to procure that FROB shall not subscribe for Bank Capital Instruments in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except a financial institution using EFSF Debt Securities as expressly set forth in consideration unless FROB and the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter financial institution have entered into a separate agreement with HSBC-HK Pre- Subscription or Subscription Agreement substantially in the form agreed between EFSF, the Beneficiary Member State and FROB; and
(v) to comply with the additional undertakings set out in Schedule 11 1 (HSBCBank Recapitalisation Facility: Facility Specific Terms);
(c) to obtain and maintain in full force and effect all authorisations necessary for it and FROB to comply with their respective obligations under this Agreement (including the Facility Specific Terms) and each Pre-HK Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all ), direct, unconditional, unsubordinated and general obligation of the parties referred Beneficiary Member State and will rank pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in Schedule 12 all respects with applicable laws which might affect its ability to perform this Agreement (Excluded Release Partiesincluding the Facility Specific Terms) heretoand each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and notwithstanding anything to the contrary contained herein Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect relation to the Court Supervised Arrangements. Without limiting amounts raised to fund the generality Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour provision of any Chapter 11 Plan Financial Assistance or take any utilisation under a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:Facility takes place;
(ag) the Backstop Claims more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of that Backstop Party as of the Backstop Deadline; divided byinvestigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(bi) aggregate Backstop Claims of all Backstop Parties as of any information which is received from the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities Beneficiary Member State in connection with implementation this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the Chapter 11 Planrepresentations, the Court Supervised Arrangement warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any RestructuringFacility Specific Terms; and/or (iii) any action, shall be acceptable to claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the Creditor Plan Proponents (as defined performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.MoU.
Appears in 4 contracts
Samples: Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement
Undertakings. 4.1 Subject 3.1 The Guarantor undertakes that it will not issue any Tier 1 Securities ranking senior to Clause 4.2its obligations under this Subordinated Guarantee or enter into any support agreement or give any guarantee in respect of any Tier 1 Securities issued by any Subsidiary or other entity if such support agreement or guarantee would rank senior to this Subordinated Guarantee unless this Subordinated Guarantee is changed to give the Holders such rights and entitlements as are contained in or attached to such securities or such other support agreement or guarantee so that this Subordinated Guarantee ranks pari passu with, each Consenting Creditor irrevocably and contains substantially equivalent rights of priority as to payment on, any Tier 1 Securities or such other support agreement or guarantee.
3.2 The Guarantor undertakes in favour of each other Consenting Creditor that, subject in the event that any Distribution is not paid to Holders in accordance with the rights attaching to the terms, conditions and limitations set forth herein, it will comply Preferred Securities in accordance with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided thatPartnership Agreement, notwithstanding any other provision in this Agreementthe Guarantor will not:
(a) declare or pay any distribution or dividend and, where applicable, will procure that no Consenting Creditor shall be required to waive distribution or dividend is declared or paid on any Defenses or be prohibited from taking any action to preserve Junior Share Capital, until the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any then applicable law or regulation or might affect directly or indirectly its reputationDividend Stopper Period has expired; or
(b) would result in such Consenting Creditor incurring any Liability (if permitted) repurchase or waiving redeem Parity Securities or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in Junior Share Capital until the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and hereinthen applicable Dividend Stopper Period has expired.
4.3 3.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (Guarantor undertakes that, so long as defined in the Solicitation Plan) shall include all any of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the samePreferred Securities is outstanding:
(a) unless the Backstop Claims of Guarantor is itself being wound up, it will not permit, or take any action that Backstop Party as would or might cause, the liquidation, dissolution or winding-up of the Backstop DeadlineIssuer (or the General Partner if the Guarantor itself is not the general partner) otherwise than with the prior approval of the Regulator (if then required); divided byand
(b) aggregate Backstop Claims of the General Partner will at all Backstop Parties as times be either the Guarantor itself or a directly or indirectly wholly- owned Subsidiary of the Backstop DeadlineGuarantor, unless, in the case of (a) or (b), otherwise approved by a simple majority of the Holders by vote or in writing.
3.4 If a Capital Deficiency Event occurs and is continuing, pursuant to which the General Partner has exercised its discretion to cause a Preferred Securities Substitution or the Regulator has required a Preferred Securities Substitution to take place, the Guarantor undertakes that it will take all reasonable steps to:
(a) allot, issue and deliver Substituted Preference Shares in satisfaction of the rights of the Holders in the circumstances and in the manner described in the Limited Partnership Agreement and herein;
(b) apply for the Substituted Preference Shares , or, as applicable, the securities issued by a finance company and backed by Substituted Preference Shares, to be listed on a stock exchange; and
(c) US$150,000,000.
4.7 pay any taxes or capital duties or stamp duties payable in Ireland arising on the allotment and issue of such Substituted Preference Shares. The Plan Administrator (Guarantor undertakes that as defined in soon as practicable after a Capital Deficiency Event, it will give, or will procure that the Solicitation Plan)General Partner gives, written notice to the Holders enclosing a Preferred Securities Substitution Confirmation which each Holder will be required to complete. The form of such Preferred Securities Substitution Confirmation shall also be made available at the offices of each Paying and Transfer Agent. The Guarantor undertakes that following such Preferred Securities Substitution, the Substituted Preference Shares allotted will rank for any dividend from the immediately preceding Distribution Payment Date but the Holders will not otherwise have any entitlement to any accrued Distributions or any other party who would payment on the Preferred Securities.
3.5 The Guarantor will procure that it will maintain at all times whilst the Preferred Securities are outstanding (a) whilst the Preferred Securities are listed on Eurolist by Euronext Amsterdam and the rules of such Stock Exchange so require, a Paying and Transfer Agent in The Netherlands, (b) a Registrar having its specified office outside the United Kingdom and (c) a Paying and Transfer Agent having a specified office in a European Union Member State (if available) that will not be authorized obliged to act withhold or deduct tax pursuant to any law implementing or complying with, or introduced in order to conform to Council Directive 2003/48/EC on behalf the taxation of savings income in the form of interest payments or any other Directive of the Plan Debtors or their successor entities in connection with implementation European Community on the taxation of savings implementing the conclusions of the Chapter 11 PlanECOFIN Council meeting of 26th -27th November, the Court Supervised Arrangement 2000 or any Restructuringlaw implementing or complying with, shall be acceptable or introduced in order to the Creditor Plan Proponents (as defined conform to, such Directive.
3.6 The Guarantor undertakes that in the Solicitation Plan)event that on a Distribution Payment Date the Relevant Proportion of a Distribution is paid it will only declare and pay (or make a payment under a guarantee in respect of) an amount not exceeding the Relevant Proportion of any distribution or dividend (and, where applicable, will procure than an amount not exceeding the Relevant Proportion of any distribution or dividend is declared and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (xpaid) a budget or budgets on any Parity Security for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionapplicable Dividend Stopper Period.
Appears in 3 contracts
Samples: Preferred Securities Agreement, Preferred Securities Agreement, Preferred Securities Agreement
Undertakings. 4.1 Subject 8.1 The Borrower undertakes to the Lender to comply with the following provisions of this Clause 4.28 at all times during the Security Period, except as the Lender may otherwise permit:
8.1.1 the Borrower will (and will procure that each Consenting Creditor irrevocably undertakes Group Company will) obtain, effect and keep effective all Authorisations which may from time to time be required (i) in connection with the Charged Assets under any law of a Relevant Jurisdiction (i) to enable it to perform its obligations under the Finance Documents including but not limited to ensure that the Finance Documents remain valid and enforceable and to continue to own the Charged Assets) and (ii) to conduct its business where failure to do so has or is reasonably likely to have a material adverse effect on the business, condition of operations of the Borrower;
8.1.2 subject to Legal Reservation, Perfection Requirements and Permitted Security, the Borrower will (and to the extent any Group Company has charged its assets pursuant to a Security Document, the Borrower shall procure that this Group Company shall) own the Charged Assets free from all Security Interests and other interests and rights of every kind, except for those created by the Security Documents; [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to omitted portions.
8.1.3 except for a sale, assignment, transfer or disposal which constitutes a Permitted Disposal or a Permitted Transaction, the Borrower will not (and shall procure that each Group Company will not) sell, assign, transfer or otherwise dispose of the Charged Assets, any of its material assets or any share therein and shall give immediate notice to the Lender of any judicial process or encumbrance affecting the Charged Assets;
8.1.4 the Borrower shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect, and, if requested by the Lender, supply copies to the Lender of, any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document;
8.1.5 the Borrower shall not (and shall ensure that no Group Company will) incur or allow to remain outstanding any Financial Indebtedness other than any Permitted Financial Indebtedness;
8.1.6 the Borrower shall not (and shall ensure that no other Group Company will) create or permit to subsist any Security Interest over any of its assets;
8.1.7 the Borrower shall not (and shall ensure that no other Group Company will):
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are leased to or intended to be re-acquired by any Group Company; or
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
8.1.8 Clauses 8.1.6 and 8.1.7 do not apply to:
(i) any Permitted Disposal;
(ii) any Permitted Transaction;
(iii) any Permitted Financial Indebtedness; and
(iv) any Permitted Security;
8.1.9 the Borrower shall procure that within twelve weeks after the first Drawdown Date: [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to omitted portions.
(i) it shall convene a shareholders’ meeting in order to grant the Warrants to Kreos Capital IV Limited;
(ii) the resolutions of the shareholders of the Borrower shall be filed with the clerk of the relevant commercial court in accordance with article 556 of the Belgian Companies Code;
8.1.10 the Borrower shall pay or discharge all fees associated with registering of any Security Interest granted in connection with the Loans;
8.1.11 the Borrower shall at the request of the Lender from time to time execute and deliver such further documents creating Security Interests in favour of each other Consenting Creditor thatthe Lender over such assets and in such form as the Lender may reasonably require in its discretion from time to time to:
(i) secure all monies, subject obligations and liabilities of the Borrower and/or any Group Company to the termsLender;
(ii) facilitate the realisation of the Charged Assets; or
(iii) exercise the powers conferred on the Lender or a receiver appointed under any Security Document, conditions from time to time, provided that the Lender shall not be able to require any Group Company to create security over Excluded Assets;
8.1.12 [A] Except as provided under (B), (C) and limitations set forth herein(D) below, it will comply no member of the Group shall:
(i) guarantee or otherwise be liable for debt or other obligations of a Ring Fenced Company; or
(ii) transfer any assets (including cash) to the Ring Fenced Company or enter into any contract with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this AgreementRing Fenced Company. [B] A member of the Group may however transfer assets to the Ring Fenced Company or enter into a contract with the Ring Fenced Company:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve incorporate the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)Ring Fenced Company;
(b) HSBCto allow the Ring Fenced Company to run its day-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBCto-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKday business operations;
(c) in addition, connection with the Consenting Creditors who are members provision of management services by the Ad Hoc Group agree Company to use reasonable efforts to seek the approval of the Bankruptcy Court Ring Fenced Company;
(which may be pursuant to a Chapter 11 Pland) to CFG Peru taking support the Ring Fenced Company to develop, manufacture, commercialise or market its Intellectual Property; provided that the aggregate value of all corporate governance actions consistent with Peruvian services [***] Certain information has been omitted and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance filed separately with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights Commission. Confidential treatment has been requested with respect to releases omitted portions. or assets provided by the Group to all Ring-fenced Companies and exculpations which are not reimbursed to the Group shall not exceed EUR [***] per annum and provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised that the Group does not incorporate more than two Ring Fenced Company during the life of the Loan Agreement. [C] A member of the Group may transfer assets to the Ring Fenced Company or enter into a separate agreement contract with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include Ring Fenced Company provided such transfer or contract constitutes a Permitted Disposal, Permitted Financial Indebtedness, Permitted Transaction or Permitted Security. [D] A Ring Fenced Company may transfer some or all of the parties referred its assets to in Schedule 12 (Excluded Release Parties) hereto, a Group Company for nil consideration and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), without assuming any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be releasedliabilities.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement (TiGenix NV), Loan Agreement (TiGenix NV)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve Guarantor hereby unconditionally and irrevocably guaranties not merely as surety but as primary obligor, the validity, existence or priority due and punctual: (i) performance by Assignee of all of the obligations of the "Beneficiary" under the Operative Documents assumed by Assignee under the Assignment Agreement; (ii) payment of any and all sums which are payable by the Beneficiary pursuant to any of its rights the Operative Documents which payment obligations were assumed by Assignee under the Assignment Agreement; and Claims (including seeking acceptance iii) performance of, observance of and compliance with all other obligations, covenants and undertakings and representations and warranties of, or made by, Assignee in the Assignment Agreement or the Beneficiary contained in or arising under the Operative Documents and assumed by Assignee under the Assignment Agreement (such payments and other obligations referred to in this Section 4(a) hereinafter referred to as the "OBLIGATIONS"). Guarantor agrees that it will not use the assets of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);ERISA Plan to fund its payment obligations hereunder.
(b) HSBC-HK mayGuarantor agrees that this Guaranty Agreement is an unconditional and absolute guaranty of payment and performance (not merely collectability), without limitation, seek to take, refrain from taking or cause to be taken or that its undertakings hereunder are not taken contingent upon any Guaranteed Party bringing any action it deems necessary against Assignee or desirable in resorting to any security and hereby expressly waives any claim that its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation undertakings hereunder on the part of HSBC-HK;are so contingent.
(c) in additionGuarantor irrevocably waives promptness, diligence, demand, and all notices whatsoever as to the Obligations guaranteed hereby, and any other circumstances which might otherwise constitute a defense available to it, or a discharge of it (other than the defense of payment or performance), and agrees that it shall not be required to consent to or receive any notice of any amendment or modification of, or waiver, consent or extension with respect to, the Consenting Creditors who are members of Purchase Agreement or the Ad Hoc Group agree other Operative Documents to use reasonable efforts to seek the approval of the Bankruptcy Court (which Assignee is a party that may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:made or given as provided herein or otherwise.
(id) an Interim Distribution that is not less than US$75 million Guarantor further agrees to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include pay all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof expenses (including, without limitation, all fees and disbursements of counsel) that may be paid or incurred by any claims arising out Guaranteed Party in enforcing any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or relating to collecting against, the Undertakings), shall not be releasedGuarantor under this Guaranty Agreement.
4.5 Notwithstanding anything (e) Guarantor understands and agrees that its obligations hereunder shall be construed as continuing, absolute and unconditional without regard to (i) the contrary hereinvalidity, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 regularity or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour enforceability of any Chapter 11 Plan Operative Document, any of the Obligations or take any collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Party, (ii) any defense, set-off or counterclaim (other than a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments defense of each Backstop Party (in reliance on the amounts confirmed payment or performance) that may at any time be available to or be asserted by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or Assignee against any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date)Guaranteed Party, or (yiii) any other arrangements governing instances whatsoever (with or without notice to or knowledge of the terms and conditions Assignee or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge of Assignee for the Obligations, or of Guarantor under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors)this Guaranty Agreement, in each case, which shall be satisfactory to the Creditor Plan Proponents, bankruptcy or in their sole discretionany other instance.
Appears in 3 contracts
Samples: Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc)
Undertakings. 4.1 Subject to Clause 4.2Unless otherwise permitted by the Principal Finance Documents, each Consenting Creditor irrevocably during the term of this Agreement, the Transferor undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this AgreementCollateral Agent:
13.1 to inform the Collateral Agent in writing promptly of any attachments (aPfändung) no Consenting Creditor of which it becomes aware in respect of any and all of the Specified Collateral and/or the Licence Receivables. In the event of an attachment, the Transferor undertakes to forward to the Collateral Agent without undue delay a copy of the attachment order (Pfändungsbeschluss), the garnishee order (Überweisungsbeschluss) and all other documents necessary for a defence against the attachment. The Transferor shall be inform the attaching creditor without undue delay about the Collateral Agent’s security interests;
13.2 not to dispute the validity of the Specified Collateral or of new applications for registration with regard to the Specified Collateral;
13.3 if failure to do the following would have a material adverse effect, to make all statements and take all actions at its own expense which are reasonably required in order to waive any Defenses maintain the registration of the Specified Collateral in the ordinary course of business, including the payment of renewal fees, and have the Specified Collateral registered if not registered so far and necessary to maintain the legal title therein and to deliver to the Collateral Agent at its reasonable request copies of the respective documents evidencing such actions;
13.4 to inform the Collateral Agent without undue delay if third parties materially dispute or be prohibited from taking any action to preserve challenge the validity, existence or priority validity of any of its rights and Claims (including seeking acceptance of the Specified Collateral or materially allege that any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as Specified Collateral violates the case may be);
(b) HSBC-HK mayrights of third parties, without limitation, seek and assert all claims and to take, refrain from taking or cause to be taken or not taken any action litigate if this is required for the defence against such claims. Following the occurrence of an Enforcement Event and whilst it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth hereinis continuing, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on Transferor agrees that the part of HSBC-HK;
(c) in addition, Collateral Agent may take over any judicial or extra judicial proceedings upon reasonable request and at the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelyTransferor’s expense; and
(ii) 13.5 subject to Clause 9 of this Agreement, to refrain from any acts or omissions, the SFR Distribution to purpose or effect of which is or would be the Notes Trustee material dilution of the value of the Licence Receivables or the Licence Receivables ceasing to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require assignable or subjecting any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary Licence Receivable to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth other than German law other than in the Solicitation PlanTransferor’s ordinary course of business;
13.6 to inform the Collateral Agent without undue delay, subject to if third parties infringe any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to Specified Collateral in Schedule 12 (Excluded Release a way which would have a material adverse effect on the Collateral Agent’s and/or the Secured Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or ’ rights relating to the Club Loans or Specified Collateral. The Transferor shall, acting commercially reasonably and considering the Notes or enforcement thereof (including, without limitation, any claims arising out legitimate interest of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Collateral Agent and the Notes Trustee orSecured Parties, prosecute such infringement in its own name and at its own expense. All compensation claims becoming due after the alternative, by the Majority Backstop Parties date hereof become part of the applicable Senior Claims as Specified Collateral. Following the occurrence of an Enforcement Event and whilst it is continuing the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties Collateral Agent and/or the Plan Debtors (including Secured Parties may take over any judicial or extra judicial proceedings upon request and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to at the Creditor Plan Proponents, in their sole discretionTransferor’s expense.
Appears in 2 contracts
Samples: Security Transfer and Assignment Agreement (RenPac Holdings Inc.), Security Transfer and Assignment Agreement (RenPac Holdings Inc.)
Undertakings. 4.1 Subject to Clause 4.2The Trust agrees with you, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor for your benefit, that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:: ------------
(a) no Consenting Creditor The Trust shall be required sell Shares of the Funds so long as it has such Shares available for sale and shall cause the transfer agent (the "Transfer -------- Agent") to waive any Defenses record on its books the ownership of such Shares registered in ----- such names and amounts as you have requested in writing or be prohibited from taking any action other means, as promptly as practicable after receipt by the Trust of the payment therefor. The Trust will make such filings under the Investment Company Act with, and pay such fees to, the Commission as are necessary to preserve the validity, existence or priority register Shares of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor Fund sold by you on behalf of the Club Loans and/or Notes (as Trust. Prior to the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation termination of the Restructuring in the manner set forth hereinthis Agreement, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as Trust will not file any amendment to HSBC-HK without further obligation hereunder on any Registration Statement or amendment or supplement to any Prospectus or SAI (whether pursuant to the part of HSBC-HK;
(c) in additionSecurities Act, the Consenting Creditors who are members of the Ad Hoc Group agree Investment Company Act, or otherwise) without prior notice to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution you; provided, -------- however, that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing nothing contained in this Agreement shall require in any Consenting Creditor way limit ------- the Trust's right to takefile such amendments to any Registration Statement, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (amendments or omission):
(a) would be contrary supplements to any applicable law Prospectus or regulation SAI as the Trust may deem advisable, such right being in all respects absolute and unconditional, it being understood that this proviso shall not relieve the Trust of its obligation to give prior notice of any such amendment or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject supplement to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything you. Subject to the contrary contained herein (including in Schedule 8 (Term Sheet))foregoing sentence, any release granted by a Consenting Creditor under if the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour filing of any Chapter 11 Plan Prospectus or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or partiesSAI, as the case may be, have agreed contained in any Registration Statement at the relevant Effective Date, or any amendment or supplement thereto, is required under Rule 497, the Trust will cause such Prospectus or SAI, and any amendment or supplement thereto, to be filed with the Commission pursuant to the terms applicable paragraph of Rule 497 within the time period prescribed and will, if requested, provide evidence satisfactory to you of such timely filing. The Trust will promptly advise you (xi) when such Prospectus or SAI shall have been filed (if required) with the Commission pursuant to Rule 497, (ii) when, prior to termination of this Agreement, any amendment to any Registration Statement shall have been filed or become effective, (iii) of any request by the Commission for any amendment of any Registration Statement or amendment or supplement to any Prospectus or SAI or for any additional information relating to or that could affect disclosure in any of the foregoing, (iv) of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust under the Investment Company Act, or the institution or (to the best knowledge of the Trust) threatening of any proceeding for that purpose, and (v) of the receipt by the Trust of any notification with respect to the suspension of the qualification of the offer or sale of Shares of a Fund in any jurisdiction or the initiation or (to the best knowledge of the Trust) threatening of any proceeding for such purpose. The Trust will use its best efforts to prevent the issuance of any such order or suspension and, if issued, to obtain as soon as possible the withdrawal or suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered under the Securities Act, any event occurs as a result of which such Prospectus or SAI would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend any Registration Statement or amend or supplement any Prospectus or SAI to comply with the Securities Act, the Investment Company Act or the Rules and Regulations thereunder, the Trust will notify you promptly of any such circumstance and promptly will prepare and file with the Commission, subject to the third sentence of Section 6(a), an amendment or supplement which will correct such statement or omission or effect such compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its shareholders and, subject to Section 8 of this Agreement, to you (with sufficient copies for the Authorized Dealers), a report containing the financial statements required to be included in such reports under Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as many conformed copies of the Registration Statements including exhibits thereto, on each Effective Date, as you may reasonably request for yourself and for delivery to the Authorized Dealers and, so long as delivery of a Prospectus or SAI by you or any Authorized Dealer may be required by law, the number of copies of each Prospectus and each SAI as you may reasonably request for yourself and for delivery to the Authorized Dealers.
(e) To the extent required by applicable state law, the Trust will use its best efforts to arrange for the qualification of an appropriate number of the Shares of the Funds for sale under the laws of such of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, and such other jurisdiction as you and the Trust may approve, and will maintain such qualifications in effect as long as may be reasonably requested by you, provided that the Trust shall not be required in connection herewith or as a condition hereto to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction. You shall furnish such information and other material relating to your affairs and activities as may be required by the Trust in connection with such qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and, subject to Section 8 of this Agreement, the Trust, if so requested, will furnish to you, as soon as they are available (with sufficient copies for the Authorized Dealers), copies of all reports, communications and financial statements sent by the Trust to its shareholders or filed by, or on behalf of, the Trust with the Commission.
(g) On each date the Trust is required to file with the Commission a notice under paragraph (b)(1) of Rule 24f-2 under the Investment Company Act, the Trust, if so requested, shall furnish to you a copy of the opinion of counsel for the Trust required by such Rule to the effect that the Shares covered by the notice were legally issued, fully paid and nonassessable. The Trust further agrees that if, in connection with the filing of any post-effective amendment to any Registration Statement after the date of this Agreement:
(i) a budget change is made to the statements under the caption "Shares of the Fund" in any Prospectus or budgets SAI that is deemed material by you, the Trust, if so requested, shall furnish to you an opinion of counsel for the Plan Debtors Trust, dated the date of such post-effective amendment, to the effect of paragraph 2 (which to the extent it relates to the description of the Shares);
(ii) the Fund Agreements are amended or modified in any manner, the Trust, if so requested, shall include all disbursements expected furnish to be you an opinion of counsel for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made by to the Plan Debtors, whether expressly provided for statements under the Restructuring Documents caption "Taxation" in any Prospectus or otherwiseSAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the periods prior Trust, dated the date of such post- effective amendment. Any opinion or statement furnished pursuant to this Section 6(g) shall be modified as necessary to relate to this Agreement and after the Restructuring Fund Agreements and the Rules and Regulations as then in effect and shall state that the Authorized Dealers may rely on it.
(h) The Trust, if so requested, shall furnish to you on each subsequent Effective Date), or (y) other arrangements governing Date with respect to an amendment of a Registration Statement which first includes certified financial statements for the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors)preceding fiscal year, in respect of a Fund, a copy of the report of the Trust's independent public accountants with respect to the financial statements and selected per share data and ratios relating to such Fund, addressed to you. The Trust further agrees that the Trust, if so requested, shall furnish to you (i) on each casedate on which the Trust, which shall be pursuant to the preceding sentence, furnishes to you a report of its independent public accountants, a certificate of its treasurer or assistant treasurer in a form reasonably satisfactory to you describing in reasonable detail how the Creditor Plan Proponentsfigures included under the captions "Portfolio Transactions" and "Performance Information" (or similar captions) in the Prospectus or SAI of such Fund and the figures relating to the aggregate amounts of remuneration paid to officers, trustees and members of the advisory board and affiliated persons thereof (as required by Section 30(d)(5) of the Investment Company Act) were calculated and confirming that such calculations are in their sole discretionconformity with the Rules and Regulations under the Investment Company Act and (ii) on each date the Trust files with the Commission the Trust's required semi-annual financial statements, a certificate of its treasurer or assistant treasurer in a form reasonably satisfactory to you, describing the manner in which such financial statements were prepared and confirming that such financial statements have been prepared in conformity with the Rules and Regulations under the Investment Company Act.
Appears in 2 contracts
Samples: Distribution Agreement (Goldman Sachs Variable Insurance Trust), Distribution Agreement (Goldman Sachs Variable Insurance Trust)
Undertakings. 4.1 Subject to Clause 4.2The Mortgagor hereby undertakes and agrees with the Security Trustee, for the benefit [Mortgage of Shares] of the Security Trustee and each Consenting Creditor irrevocably undertakes in favour Lender, throughout the continuance of each other Consenting Creditor this Deed and so long as the Secured Obligations or any part thereof remains owing that, subject to unless the terms, conditions and limitations set forth hereinSecurity Trustee otherwise agrees in writing, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:will:-
(a) no Consenting Creditor shall be required not create or attempt or agree to waive create or permit to exist any Defenses Security Interest over all or be prohibited from taking any action part of the Collateral or any interest therein or otherwise sell, transfer, assign, deal with or dispose of all or any part of the Collateral or attempt or agree to preserve the validity, existence or priority of do any of its rights and Claims the same (including seeking acceptance of any Claims for fees, costs and expenses except under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may beor pursuant to this Deed);
(b) HSBC-HK may, without limitation, seek not grant or attempt or agree to take, refrain from taking grant in favour of any other person any interest in or cause to be taken any option or not taken other rights in respect of any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKCollateral;
(c) ensure that no person holding any of the Collateral as its Nominee for the time being does any of the acts prohibited in additionthis Deed;
(d) at all times remain the sole, direct, absolute, legal and beneficial owner of the Collateral;
(e) procure that no material amendment or supplement is made to the constitutional documents of any of the Companies other than pursuant to Clause 16.15 of the Facility Agreement without the prior written consent of the Security Trustee;
(f) immediately upon the appointment of any new director of the relevant Company, deposit or procure that there be deposited with the Security Trustee, the Consenting Creditors who equivalent documents mutatis mutandis with respect to such director in the forms set out in Schedules 3, 4, 5 and 6;
(g) not take or permit any action whereby the rights attaching to the Collateral and/or any other shares in the relevant Company are members altered;
(h) give to the Security Trustee upon receipt copies of all notices, requests and other documents sent or received with respect to the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:Collateral;
(i) an Interim Distribution that is not less than US$75 million give to the Notes Security Trustee and such information regarding the Club Loan Agent in accordance with Collateral as the Agreed Participation Security Trustee shall reasonably require;
(without, j) do or permit to be done every act or thing which the Security Trustee may from time to time require for the avoidance purpose of doubt, any Indebtedness being reduced on account enforcing the rights of any Interim Distributions or SFR Distributions that have not occurred at that time) the Security Trustee hereunder and will allow its name to be applied used as and when required for that purpose;
(k) not do or cause or permit to be done anything which may in accordance with any way depreciate, jeopardise or otherwise prejudice the Existing Indenture and value of the Club Loan AgreementSecurity Trustee's security constituted hereunder;
(l) procure that the relevant Company will forthwith on presentation by the Security Trustee or its nominee following the security constituted by this Deed becoming enforceable, respectivelyduly register all transfers of the Collateral; and
(iim) if the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement Mortgagor shall require acquire any Consenting Creditor to take, such other stocks or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except shares as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) heretothe definition of Collateral, and notwithstanding anything it shall forthwith deliver or procure that there be [Mortgage of Shares] delivered to the contrary contained herein (including Security Trustee the certificates in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under respect thereof together with instruments of transfer and bought and sold notes in respect thereof duly executed in blank to enable the Restructuring Documents shall not extend same to such parties, except with respect to any discharge of contractual claims under be registered in the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality name of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of Security Trustee or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable its nominee following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed security constituted by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000this Deed becoming enforceable.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 2 contracts
Samples: Deed of Mortgage of Shares (China Netcom Group CORP (Hong Kong) LTD), Deed of Mortgage of Shares (China Netcom Group CORP (Hong Kong) LTD)
Undertakings. 4.1 Subject 2.1 No Obligor shall engage in any negotiations or transactions to Clause 4.2, each Consenting Creditor irrevocably undertakes be entered into for the purpose of financing of any working capital needs with any institution without first notifying the Agent sufficiently in favour advance of each the planned transaction and ensuring that the Agent has the right to match the best offer received by any Obligor from other Consenting Creditor that, subject to institutions in respect of at least 60% of working capital needs of the terms, conditions and limitations set forth herein, it will comply Borrower’s Group.
2.2 Other than in connection with the Consenting Creditors’ undertakings transactions contemplated herein or as set forth provided in Schedule 3 (Consenting Creditors’ undertakings) provided thatparagraph 2.1 above, notwithstanding no Obligor shall engage in any negotiations or transactions to be entered into for the purpose of refinancing the Financial Indebtedness in respect of the Finance Documents, Bank Handlowy Facility Documents and BZWBK Facility Documents, or incurring any Financial Indebtedness to finance any other provision purposes, in this Agreement:
(a) no Consenting Creditor shall each case where such refinancing of Financial Indebtedness is intended to be required to waive any Defenses or be prohibited obtained from taking any action to preserve commercial banks, without first notifying the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor Agent sufficiently in advance of the Club Loans and/or Notes planned transaction and ensuring that the Agent has the right to: (as i) file the case may be);first offer in respect of such financing or refinancing and (ii) match the best offer in respect of such financing or refinancing received from other institutions.
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems 2.3 The parties shall cooperate in good faith and do all acts and things reasonably necessary or desirable in its sole discretion order to release and replace the Existing Security (and if necessary the Guarantors’ grant of their obligations), consistent with the New Indenture and this letter.
2.4 The parties shall use their best efforts to execute the amended and restated agreement reflecting the provisions of this letter agreement as soon as reasonably possible after the final execution of the New Indenture, and in any case by 31 January 2010. The validity of the Adversary Proceedingsforegoing waivers and agreements in respect of the Facility Agreement and the Intercreditor Agreement shall not be affected whether or not such an amendment and restatement is entered into, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would in the event that the New Bonds are not issued prior to or on 31 January 2010 the foregoing waivers and agreements shall cease to be contrary to any applicable law or regulation or might affect directly or indirectly its reputationvalid; or
and (b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject event that Borrower notifies the Agent prior to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree 31 January 2010 that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall New Bonds will not be released.
4.5 Notwithstanding anything to issued then the contrary herein, HSBC-HK foregoing waivers and agreements shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected cease to be made by valid from the Plan Debtors, whether expressly provided for under date that the Restructuring Documents or otherwise, for Borrower notifies the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionAgent.
Appears in 2 contracts
Samples: Facility Agreement (Central European Distribution Corp), Facility Agreement (Central European Distribution Corp)
Undertakings. 4.1 Subject to Clause 4.2Once the performance of a Secondary Public Offering is requested, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 this Section, and as long as VDQ has not exercised its Right of First Refusal, after satisfactory completion of the feasibility study referred to in Section 8.4 below, SALIC, jointly with VDQ and the Company, undertake, pursuant to the applicable regulations, to prepare the required documentation, enter into the proper agreements, allow whomever it may lawfully concern to carry out a due diligence in the Company to the extent required and usual to this kind of offering, and take all other measures required to perform the Secondary Public Offering, in compliance with the provisions of the Brazilian Law, the CVM rules applicable to the Secondary Public Offering and, as applicable, the rules of B3 (Consenting Creditors’ undertakings) provided that, notwithstanding or of any other provision stock exchange in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses Brazil or be prohibited from taking any action to preserve abroad at the validitydiscretion of SALIC), existence or priority of any of its rights and Claims (as soon as possible, including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or but not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to makelimited to:
(i) prepare and file with CVM and B3 an Interim Distribution updated reference form of the Company, as well as the Secondary Public Offering prospect, and take all other measures that is not less than US$75 million may be required for compliance with the provisions of Brazilian Law and the CVM rules applicable to the Notes Trustee Secondary Public Offering;
(ii) enter into a distribution and coordination agreement of the Secondary Public Offering, with scope, form and substance usual to the market, and take all other measures reasonably requested by SALIC or by the Global Coordinator of the Secondary Public Offering in such a manner as to speed and enable the successful Secondary Public Offering and to arrange for providing the Global Coordinator (and occasionally any other arrangers or coordinators of the Secondary Public Offering) with legal opinions of the Company in usual form, covering any matters usually covered in public offerings of the same nature, as reasonably requested by the Global Coordinator;
(iii) pursuant to the applicable regulations, provide any financial, corporate and real estate documents and any other relevant documents for analysis by a representative of SALIC, by the Global Coordinator of the Secondary Public Offering and by any lawyers or auditors engaged by SALIC, by the Company or by the Global Coordinator, and cause the management, the employees and the Club Loan Agent auditors of the Company to supply any information requested (in accordance with the Agreed Participation (withoutmanner usually made in audits conducted in public offerings of securities) by any representative, for arranger or coordinator, lawyer or auditor in relation to the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelySecondary Public Offering; and
(iiiv) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, take any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as measures reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with required for implementation of the Chapter 11 PlanSecondary Public Offering.
8.2.1. If there is any change in the applicable Law and/or regulations modifying the practices or procedures above, the Court Supervised Arrangement or any Restructuring, such practices and procedures shall be acceptable modified by mutual agreement between the Parties in such a manner as to optimize the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionSecondary Public Offering.
Appears in 2 contracts
Samples: Shareholders’ Agreement, Shareholder Agreement
Undertakings. 4.1 (1) Subject as provided in clause 7 (in the case of paragraphs (a) to Clause 4.2(c) below) and clause 8 (in the case of paragraphs (d) to (f) below), each Consenting Creditor irrevocably the Escrow Trustee hereby undertakes in favour of the Supervisors, each other Consenting Admitted Scheme Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (withoutincluding, for the avoidance of doubt, any Indebtedness the Eurobond Trustee and BoNY upon their Scheme Claims being reduced Admitted) and each Designated Recipient as follows:
(a) against receipt of the First Initial Distribution Notice under the Corp Scheme, to direct (and it hereby does direct) the Distribution Agent to transfer on account behalf of the Admitted Known Creditors named in the First Initial Distribution Notice from the Admitted Known Corp Scheme Creditors Escrow Fund such amounts and securities as are equal to the Distribution Entitlement in respect of the Admitted Known Claims the subject of the First Initial Distribution Notice to the Admitted Scheme Creditors named in the First Initial Distribution Notice;
(b) against receipt of any Interim Distributions or SFR Distributions Distribution Notice (other than the First Initial Distribution Notice) under the Corp Scheme, to direct (and it hereby does direct) the Distribution Agent to transfer on behalf of the Scheme Creditors from the relevant Corp Escrow Accounts such amounts and securities as are specified in the Distribution Notice to the Admitted Scheme Creditors named in the Distribution Notice;
(c) against receipt of a Transfer Notice relating to any Corp Scheme Consideration, to direct (and it hereby does direct) the Distribution Agent to take the action required by that have not occurred at that timeTransfer Notice;
(d) against receipt of the First Initial Distribution Notice under the plc Scheme, to be applied direct (and it hereby does direct) the Distribution Agent to transfer on behalf of the Admitted Known Creditors named in accordance with the Existing Indenture First Initial Distribution Notice from the Admitted Known plc Scheme Creditors Escrow Fund such amounts and securities as are equal to the Club Loan AgreementDistribution Entitlement in respect of the Admitted Known Claims the subject of the First Initial Distribution Notice to the Admitted Scheme Creditors named in the First Initial Distribution Notice;
(e) against receipt of any Distribution Notice (other than the First Initial Distribution Notice) under the plc Scheme, respectivelyto direct (and it hereby does direct) the Distribution Agent to transfer on behalf of the Scheme Creditors from the relevant plc Escrow Accounts such amounts and securities as are specified in the Distribution Notice to the Admitted Scheme Creditors named in the Distribution Notice; and
(iif) against receipt of a Transfer Notice relating to any plc Scheme Consideration, to direct (and it hereby does direct) the SFR Distribution Agent to take the Notes action required by that Transfer Notice. Each of the Escrow Trustee and the Distribution Agent agrees that it shall have no discretion in the making or withholding of any Distribution or credit or transfer required by a Transfer Notice, or portion thereof, and undertakes at all times to be applied in accordance comply with the Existing Indenture.
4.2 Nothing terms of Distribution Notices and Transfer Notices and any other directions given to it by the Supervisors and, in this Agreement shall require any Consenting Creditor to takethe case of the Distribution Agent, or omit to takethe Escrow Trustee. Except where defined herein, any action if such Consenting Creditor (capitalised terms used in its sole and absolute discretion) determines that such action (or omission):
paragraphs (a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or(c) of this sub-clause (1) have the meanings given to them in the Corp Scheme and capitalised terms used in paragraphs (d) to (f) of this sub-clause (1) have the meanings given to them in the plc Scheme.
(b2) would result Each of the Escrow Trustee and the Distribution Agent undertakes that it will take any and all action required by the Supervisors of the relevant Scheme in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes order to give effect to the provisions of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and hereinthat Scheme.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC(3) Subject as provided in sub-HK in the form set out in Schedule 11 clause (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan2) shall include all above, each of the parties referred to in Schedule 12 (Excluded Release Parties) heretoEscrow Trustee and the Distribution Agent undertakes that, and notwithstanding anything to save with the contrary contained herein (including in Schedule 8 (Term Sheet))prior written consent of the Supervisors of the relevant Scheme, it will not take any release granted by a Consenting Creditor under action affecting the Restructuring Documents shall not extend to such parties, trust property or any part of it except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be where necessary to give effect to either Scheme or as required by clause 7 and 8 of this Agreement.
(4) Any Distribution or transfer made in accordance with sub-clause (1) above shall only be made following receipt by the Court Supervised ArrangementsEscrow Trustee and the Distribution Agent of a duly signed Distribution Notice or Transfer Notice from the Supervisors and then only in accordance with the terms of that Distribution Notice or Transfer Notice. Without limiting Each Distribution Notice and Transfer Notice shall constitute deemed directions from the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating Escrow Trustee to the Club Loans Distribution Agent to make the relevant Distribution or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be releasedtransfer.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)5) to vote The Escrow Trustee hereby undertakes in favour of any Chapter 11 Plan or take the Supervisors and the other parties to this Agreement that it will act honestly and in good faith and will exercise the diligence expected of a position reasonably prudent trustee and custodian in the Chapter 11 Proceedings in respect thereoffulfilment and/or exercise of its duties and obligations under this Agreement.
4.6 As soon as (6) The Distribution Agent hereby undertakes in favour of the Supervisors and the other parties to this Agreement that it will act honestly and in good faith and will exercise the diligence expected of a reasonably practicable following prudent custodian and agent in comparable circumstances in the Backstop Deadlinefulfilment and/or exercise of its duties and obligations under this Agreement.
(7) Bondholder Communications hereby undertakes in favour of the Supervisors, the Information Agent shall calculate Eurobond Trustee, BoNY and the Backstop Commitments other parties to this Agreement that it will act honestly and in good faith and will exercise the diligence of a reasonably prudent expert in comparable circumstances in the fulfilment and/or exercise of its duties and obligations under this Agreement.
(8) Conditional upon the proposed reduction in its share capital and repayment of capital in specie being effected as contemplated by the Scheme Implementation Deed, Ancrane hereby undertakes in favour of each Backstop Party (of the other parties to this Agreement that it shall execute the Ancrane Direction Letter on or before 17th April, 2003. Subject to Ancrane executing the Ancrane Direction Letter, in reliance on accordance with the amounts confirmed by proposed direction set out in paragraph 4(b) of that letter, each of the Club Loan Agent Eurobond Trustee, BoNY, the Escrow Trustee and the Notes Trustee or, in Supervisors hereby direct the alternative, by the Majority Backstop Parties of the applicable Senior Claims Distribution Agent to pay all Corp and plc Scheme Consideration to which Ancrane would otherwise have been entitled through its Scheme Claim and as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000a Bondholder to plc.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 2 contracts
Samples: Escrow and Distribution Agreement (Marconi Corp PLC), Escrow and Distribution Agreement (Marconi PLC)
Undertakings. 4.1 Subject 11.1 Each of the Parent and the Borrower undertakes to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor the Lender that, subject to unless otherwise agreed in writing by the termsLender, conditions from the date of this Agreement and limitations set forth herein, it will comply with so long as any monies are owing under this Agreement or remain available for drawing by the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this AgreementBorrower:
(a) no Consenting Creditor shall be required to waive from the Release Date, it will (and, in the case of the Parent, will procure each of its Subsidiaries will) ensure that the proceeds of any Defenses issue of shares, securities convertible into shares or be prohibited from taking other equity or debt instruments (or any action to preserve other raising of debt finance) by the validity, existence Parent or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor Subsidiaries which is a Holding Company of the Club Loans and/or Notes Borrower (as the case may be);
(b“Proceeds”) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result applied in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all prepayment of the parties referred to in Schedule 12 Advances (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except together with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, all accrued interest and other amounts due thereunder as may be necessary to give effect or outstanding under this Agreement) within 3 Business Days of receipt by the relevant member of the Parent Group of such proceeds (provided that, prior to the Court Supervised Arrangements. Without limiting Release Date, cash amounts representing the generality Proceeds may only be applied in prepayment of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out Advances with the prior consent of or relating the Senior Facility Agent (if prior to the Club Loans or Senior Discharge Date) and the Notes or enforcement thereof Subordinated Facility Agent (including, without limitation, any claims arising out of or relating if prior to the UndertakingsSubordinated Discharge Date), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided byand
(b) aggregate Backstop Claims of all Backstop Parties as it will not (and, in the case of the Backstop DeadlineParent, will procure that none of its Subsidiaries will) create, assume, incur or otherwise permit to be outstanding any Subordinated Debt with a repayment or maturity date falling prior to 15 April, 2013; and
(c) US$150,000,000upon the request of the Lender, it will execute and deliver such further documents and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Agreement.
4.7 The Plan Administrator (as defined in 11.2 In the Solicitation Plan), event of any merger or any other party who would be authorized to act on behalf consolidation of the Plan Debtors Parent or their successor entities in connection the Borrower with implementation of the Chapter 11 Planany person, the Court Supervised Arrangement or any Restructuring, shall be acceptable to Parent and/or the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or partiesBorrower, as the case may be, have agreed shall execute such documents and take such action as the Lender may reasonably require so as to ensure that:
(a) the successor entity remains bound by the terms of this Agreement as the Parent or, as the case may be, the Borrower; and
(xb) a budget or budgets for the Plan Debtors Lender has the same rights against the successor entity as it would have acquired had the successor entity been an original party to this Agreement as the Parent or, as the case may be, the Borrower.
11.3 Each of the Parent and the Borrower acknowledges and agrees that:
(which shall include all disbursements expected to be made by a) the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements Lender may be made irreparably harmed by a breach of any term of this Clause 11 and damages may not be an adequate remedy; and
(b) the Plan Administrator, such other parties and/or the Plan Debtors (including Lender may be granted an injunction or specific performance for any and all expenditures for counsel threatened or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionactual breach of any term of this Agreement.
Appears in 2 contracts
Samples: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakingsa) provided that, notwithstanding any other provision in this AgreementThe undersigned Registrant hereby undertakes:
(a1) no Consenting Creditor shall be required To file, during any period in which offers or sales are being made, a post-effective amendment to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to makeRegistration Statement:
(i) an Interim Distribution that is not less than US$75 million to To include any prospectus required by Section 10(a)(3) of the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance Securities Act of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and1933;
(ii) To reflect in the SFR Distribution prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any material information with respect to the Notes Trustee plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be applied in accordance with a new registration statement relating to the Existing Indenturesecurities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
4.2 Nothing in this Agreement shall require (3) To remove from registration by means of a post-effective amendment any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; orof the securities being registered which remain unsold at the termination of the offering.
(b) would result in such Consenting Creditor incurring The undersigned Registrant hereby undertakes that, for purposes of determining any Liability or waiving or releasing any legal or equitable rightsliability under the Securities Act of 1933, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all each filing of the parties referred Registrant’s annual report pursuant to in Schedule 12 (Excluded Release PartiesSection 13(a) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality or Section 15(d) of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out Securities Exchange Act of or 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the Club Loans or securities offered therein, and the Notes or enforcement thereof (including, without limitation, any claims arising out offering of or relating such securities at that time shall be deemed to be the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect initial bona fide offering thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (Insofar as defined indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6, or otherwise, the Registrant has been advised that in the Solicitation Plan), or any other party who would be authorized to act on behalf opinion of the Plan Debtors Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or their successor entities paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with implementation of the Chapter 11 Plansecurities being registered, the Court Supervised Arrangement or any RestructuringRegistrant will, shall be acceptable to the Creditor Plan Proponents (as defined unless in the Solicitation Plan)opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and the Plan Administrator or such other party or parties shall not will be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made governed by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, final adjudication of such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionissue.
Appears in 2 contracts
Samples: Non Qualified Share Option Agreement, Restricted Share Unit Agreement, Non Qualified Share Option Agreement
Undertakings. 4.1 Subject to Clause 4.2Unless otherwise permitted by the Principal Finance Documents, each Consenting Creditor irrevocably during the term of this Agreement, the Transferor undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this AgreementCollateral Agent:
11.1 to inform the Collateral Agent in writing promptly of any attachments (aPfändung) no Consenting Creditor of which it becomes aware in respect of any and all of the Collateral. In the event of an attachment, the Transferor undertakes to forward to the Collateral Agent without undue delay a copy of the attachment order (Pfändungsbeschluss), the garnishee order (Überweisungsbeschluss) and all other documents necessary for a defence against the attachment. The Transferor shall be inform the attaching creditor without undue delay about the Collateral Agent’s security interests;
11.2 not to dispute the validity of the Collateral or of new applications for registration with regard to the Collateral;
11.3 if failure to do the following would have a material adverse effect, to make all statements and take all actions at its own expense which are reasonably required in order to waive any Defenses maintain the registration of the Collateral in the ordinary course of business, including the payment of renewal fees, and have the Collateral registered if not registered so far and necessary to maintain the legal title therein and to deliver to the Collateral Agent at its reasonable request copies of the respective documents evidencing such actions;
11.4 to inform the Collateral Agent without undue delay if third parties materially dispute or be prohibited from taking any action to preserve challenge the validity, existence or priority validity of any of its rights and Claims (including seeking acceptance of the Collateral or materially allege that any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as Collateral violates the case may be);
(b) HSBC-HK mayrights of third parties, without limitation, seek and assert all claims and to take, refrain from taking or cause to be taken or not taken any action litigate if this is required for the defence against such claims. Following the occurrence of an Enforcement Event and whilst it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth hereinis continuing, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on Transferor agrees that the part of HSBC-HK;
(c) in addition, Collateral Agent may take over any judicial or extra judicial proceedings upon reasonable request and at the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelyTransferor’s expense; and
(ii) 11.5 to inform the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require Collateral Agent without undue delay, if third parties infringe any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to Collateral in Schedule 12 (Excluded Release a way which would have a material adverse effect on the Collateral Agent’s and/or the Secured Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or ’ rights relating to the Club Loans or Collateral. The Transferor shall, acting commercially reasonably and considering the Notes or enforcement thereof (including, without limitation, any claims arising out legitimate interest of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Collateral Agent and the Notes Trustee orSecured Parties, prosecute such infringement in its own name and at its own expense. All compensation claims becoming due after the alternative, by the Majority Backstop Parties date hereof become part of the applicable Senior Claims as Collateral. Following the occurrence of an Enforcement Event and whilst it is continuing the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties Collateral Agent and/or the Plan Debtors (including Secured Parties may take over any judicial or extra judicial proceedings upon request and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to at the Creditor Plan Proponents, in their sole discretionTransferor’s expense.
Appears in 2 contracts
Samples: Security Transfer and Assignment Agreement (RenPac Holdings Inc.), Security Transfer and Assignment Agreement (RenPac Holdings Inc.)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject Without prejudice to the termsprovisions of Clause 8, conditions and limitations set forth herein, it will comply the Director undertakes with the Consenting Creditors’ undertakings Security Trustee with effect from the date of this Agreement and as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided long as it serves as director that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor it is and shall continue to be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor sole director of the Club Loans and/or Notes Security Trustee, save (as i) pursuant to a Programme Resolution by the case may be)holders of the Covered Bonds in accordance with Clause 25 of the Trust Deed or (ii) in accordance with the provisions of Clause 8 hereof;
(b) HSBC-HK may, without limitation, seek to take, refrain it shall only resign from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation position as director of the Restructuring Security Trustee as soon as a suitable person, trust or administration office, reasonably acceptable to the CBC and the Issuer, after having consulted the Secured Parties, other than the Covered Bondholders, has been contracted to act as successor director of the Security Trustee, subject to an Extraordinary Resolution by the Covered Bondholders in accordance with Clause 25 of the manner set forth hereinTrust Deed, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as and subject to HSBC-HK without further obligation hereunder on the part of HSBC-HKRating Agency Confirmation;
(c) the Security Trustee shall undertake no other business, except as provided for in additionthe Transaction Documents, until the Issuer and the CBC no longer have any actual or contingent liabilities under any of the Transaction Documents, including, but not limited to, all liabilities vis-à-vis any and all of the Secured Parties;
(d) it shall manage the affairs of the Security Trustee in accordance with proper and prudent Dutch business practice and in accordance with the requirements of Dutch law and Dutch accounting practice and with the same care that it exercises or would exercise in connection with the administration of similar matters held for its own account or for the account of other third parties;
(e) it shall not as director of the Security Trustee (i) agree to any alteration of any agreement including, but not limited to, the Consenting Creditors who are members Transaction Documents, to which the Security Trustee is a party or (ii) enter into any agreement, without having consulted the Secured Parties, other than the Covered Bondholders, prior thereto and subject to Rating Agency Confirmation, except as provided for in any of the Ad Hoc Group agree to use reasonable efforts to seek the approval Transaction Documents or (iii) appoint other directors of the Bankruptcy Court Security Trustee save as provided in Clause 25 of the Trust Deed or Clause 8 of this Agreement;
(f) it and the Security Trustee shall refrain from any action detrimental to the Security Trustee's rights and obligations under the Transaction Documents;
(g) it shall exercise all its rights and powers as director of the Security Trustee in compliance with the Transaction Documents;
(h) it shall procure that the Security Trustee will at all times fulfil and comply with its obligations under each Transaction Document to which may be pursuant it is or will become a party, provided that to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian the extent that such obligations are contingent or dependent for their performance on the due performance by any other party of its obligations and Singapore law to make:undertakings under any Transaction Document such other party duly performs such obligations and undertakings thereunder;
(i) an Interim Distribution it shall take no action (i) to dissolve the Security Trustee, or (ii) to enter into a legal merger or a legal demerger involving the Security Trustee, or (iii) to have the Security Trustee converted into a foreign entity, or (iv) to have the Security Trustee request the court to grant a suspension of payments, or (v) to have the Security Trustee declared bankrupt;
(j) it shall not as director of the Security Trustee assign, novate or amend this Agreement;
(k) it shall ensure that is not less the Issuer, the CBC, the Secured Parties, other than US$75 million to the Notes Trustee Covered Bondholders, and the Club Loan Agent Rating Agencies are notified in accordance writing forthwith upon the Director becoming aware of any steps being taken by any party in connection with the Agreed Participation (withoutwinding up, liquidation or bankruptcy of the Security Trustee or of any steps or proceedings being taken against the Security Trustee for the avoidance of doubt, any Indebtedness being reduced on account enforcement of any Interim Distributions debt or SFR Distributions obligation and in particular that have not occurred at that time) to be applied in accordance with the Existing Indenture Issuer, the CBC, the Secured Parties, other than the Covered Bondholders, and the Club Loan AgreementRating Agencies are notified in writing within two (2) calendar days of any summons to attend court hearings on a petition for bankruptcy being served on or received by the Security Trustee;
(l) it shall procure that the Security Trustee, respectivelythe Administrator and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of the occurrence of any of the events set forth in Clause 8.2 hereof; and
(iim) the SFR Distribution to the Notes Trustee to be applied in accordance it shall comply with the Existing Indenture.
4.2 Nothing requirements of Dutch law regarding services as provided for in this Agreement shall require any Consenting Creditor to takeAgreement, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in including the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance Dutch Act on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties Supervision of the applicable Senior Claims Trust Offices as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000amended from time to time.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 2 contracts
Samples: Management Security Trustee Agreement, Management Security Trustee Agreement
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor 12.1 The Company irrevocably undertakes in favour of each other Consenting Creditor with the Lender that, subject to from the terms, conditions date of this Agreement and limitations set forth hereinfor so long as any amount is outstanding under any Loan, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementshall:
(a) no Consenting Creditor shall be obtain, maintain and comply in all material respects with the terms of all material authorisations, approvals, licences, exemptions, notarisations and consents required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action enable it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised lawfully to enter into a separate agreement with HSBC-HK in and perform its obligations under this Agreement and the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof Warrant Deed (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote issue Common Shares in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties full satisfaction of the applicable Senior Claims as exercise of all Warrants) or to ensure the Backstop Deadline) immediately following the Backstop Deadline on the following basis legality, validity, enforceability or admissibility in evidence of this Agreement in England and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided byWales;
(b) aggregate Backstop Claims of all Backstop Parties as promptly inform the Lender of the Backstop Deadline; occurrence of any Event of Default and, upon receipt of a written request to that effect from the Lender, confirm to the Lender that, save as previously notified to the Lender or as notified in that confirmation, no such Event of Default has occurred;
(c) US$150,000,000use all reasonable efforts to maintain the Admission of the Common Shares to trading on CSE;
(d) comply with, and file in a timely manner all material reports and other documents required of it under all Applicable Laws, including the CSE Trading Rules, and will not take any action or file any document to terminate or suspend the admission of its Common Shares to trading on CSE;
(e) take all steps reasonably necessary to preserve and continue the material licences, permits and other authorities required by the Company’s Group to carry on its business (as such business and as such material licences, permits and other authorities may be constituted from time to time);
(f) immediately notify the Lender upon its becoming aware of the issuance by the CSE of any notice relating to a potential or actual suspension or de-listing of the Common Shares from trading on CSE;
(g) only use the proceeds of any Loan for activities in the ordinary course of its business; and
(h) not enter into Restricted Activity or financing arrangements, either for equity or debt, (other than with the Lender) without offering the Lender the right of first refusal to enter into such other financing arrangements on materially the same bona fide terms as offered by a third party. For the avoidance of doubt such financing arrangements shall include royalty financing and offtake financing.
4.7 The Plan Administrator (as defined i) Not issue any of the 10,000,000 preferred shares that form part of the Company’s authorised share capital but have not yet been issued;
(j) procure that the Company nor any member of the Company’s Group shall, without the prior written approval of Lender:
(i) issue any loan capital or enter into any commitment with any person with respect to the issue of any loan capital;
(ii) make any borrowing from its bankers other than in the Solicitation Plan)ordinary and usual course of business;
(iii) create or grant any Encumbrance over the whole or any part of the business, undertaking or assets of the Company or over any shares in the Company or any member of the Company’s Group, or agree to do so;
(iv) make any loan (otherwise than by way of deposit with a bank or other party who would be authorized to act on behalf institution the normal business of which includes the acceptance of deposits or in the ordinary course of business) or grant any credit (other than in the normal course of trading) or giving any guarantee (other than in the normal course of trading) or indemnity; or
(v) issue or grant any options or warrants under which the holder may subscribe for Common Shares (other than in accordance with an employee incentive share scheme) which have an exercise price which is less than half the amount of the Plan Debtors or their successor entities Conversion Price;
(k) supply the Lender with the financial and other information necessary to keep the Lender informed about how effectively the Company is performing and in connection particular shall supply the Lender with implementation quarterly management accounts of the Chapter 11 PlanCompany within 28 days after the end of the month to which they relate, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtorsa profit and loss account, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to a balance sheet and after the Restructuring Effective Date), or (y) other arrangements governing the terms a cashflow statement and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or information as the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.Lender may reasonably require;
Appears in 2 contracts
Samples: Convertible Loan Agreement (Bunker Hill Mining Corp.), Convertible Loan Agreement (Bunker Hill Mining Corp.)
Undertakings. 4.1 Subject to The undertakings in this Clause 4.217 remain in force from the date of this Agreement for as long as any Commitment is in force or any amount is outstanding under this Agreement. The Borrower shall, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply save with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:prior approval of the Majority Lenders,
(a) not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class or type of equity share capital carrying any rights which are more favourable than such rights attaching to the Ordinary Shares, but so that nothing in this paragraph (a) shall prevent:
(i) any consolidation, reclassification or subdivision of the Ordinary Shares;
(ii) any modification of such rights which is not, in the determination in its absolute discretion of an independent financial adviser (pre-approved by the Majority Lenders, such approval not unreasonably to be withheld), prejudicial to the interests of the Lenders;
(iii) any alteration to the articles of association of the Borrower made in connection with the matters described in this Clause 17 to the extent permitted under this Clause 18 or which is supplemental or incidental to any of the foregoing (including any amendment made to enable or facilitate procedures relating to such matters and any amendment dealing with the rights and obligations of holders of Securities, including Ordinary Shares, dealt with under such procedures);
(iv) any issue of equity share capital where the issue of such equity share capital results, or would, but for the provisions of Clause 12.4 (Procedure for exercise of Conversion Right) relating to roundings, otherwise result in an adjustment to, or a consideration with respect to the determination of, the Conversion Price;
(v) any issue of equity share capital or modification of rights attaching to the Ordinary Shares, where prior thereto the Borrower shall have instructed an independent financial adviser to determine in its absolute discretion what (if any) adjustments should be made to, or considerations should be made with respect to the determination of, the Conversion Price as being fair and reasonable to take account thereof and such independent financial adviser shall have determined in its absolute discretion either that no Consenting Creditor adjustment or consideration is required or that an adjustment to or consideration in respect of the determination of the Conversion Price is required and, if so, the new Conversion Price as a result thereof and the basis upon which such adjustment or consideration in respect of the determination is to be made and, in any such case, the date on which the adjustment or consideration in respect of the determination shall take effect (and so that the adjustment or consideration in respect of the determination shall be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights made and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may beshall take effect accordingly);
(b) HSBC-HK maynot make any issue, without limitationgrant or distribution or take or omit to take any other action if the effect thereof would be that, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part exercise of HSBC-HKConversion Rights, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
(c) not reduce its issued share capital or any uncalled liability in additionrespect thereof, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to makeor any non-distributable reserves, except:
(i) an Interim Distribution that is not less than US$75 million pursuant to the Notes Trustee terms of issue of the relevant share capital;
(ii) by means of a purchase or redemption of share capital of the Borrower to the extent, in any such case, permitted by applicable law;
(iii) where the reduction does not involve any distribution of assets;
(iv) solely in relation to a change in the currency in which the nominal value of the Ordinary Shares is expressed;
(v) to create distributable reserves;
(vi) by way of transfer to reserves as permitted under applicable law;
(vii) where the reduction is permitted by applicable law and an independent financial adviser, acting as expert and in its absolute discretion, advises that the Club Loan Agent interests of the Lenders will not be materially prejudiced by such reduction;
(viii) where the reduction is permitted by applicable law and results in accordance an adjustment to, or a consideration with respect to the Agreed Participation (withoutdetermination of, the Conversion Price or is otherwise taken into account for the avoidance purposes of doubtdetermining whether such an adjustment or consideration with respect to the determination should be made; or
(ix) provided that, without prejudice to the other provisions of this Agreement, the Borrower may exercise such rights as it may from time to time be entitled pursuant to applicable law to purchase, redeem or buy back its Ordinary Shares and any Indebtedness being reduced on account depositary or other receipts or certificates representing Ordinary Shares without the consent of any Interim Distributions Lender;
(d) provide to the Lenders, by no later than 5 Business Days prior to the Closing Date, all of the documents and evidence referred to in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Lenders (acting reasonably) provided that the conditions may be waived by the Lenders in whole or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelypart; and
(e) pay and discharge all Taxes due and payable by it prior to the accrual of any fine or penalty for late payment, unless (and only to the extent that) (i) payment of those Taxes is being contested in good faith, (ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided adequate reserves are being maintained for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent those Taxes and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
costs required to contest them (aiii) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
payment can be lawfully withheld and (biv) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000failure to pay those Taxes is not reasonably likely to have a material adverse effect.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 2 contracts
Samples: Fixed Rate Convertible Shareholder Loan Facility, Fixed Rate Convertible Shareholder Loan Facility
Undertakings. 4.1 Subject So long as any amount remains unpaid in respect of principal, interest or otherwise hereunder or any Bank is under any obligation to Clause 4.2make or maintain its participation in the Facilities or any part thereof (unless the Agent acting on the instructions of the Majority Banks otherwise agrees), each Consenting Creditor irrevocably Borrower undertakes in favour of relation to itself and the Parent undertakes in relation to (as relevant) each other Consenting Creditor Group Company, Guarantor, and Material Subsidiary (as referred to in sub-clauses (a) to (o) (inclusive) below that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
(a) NEGATIVE PLEDGE: save for Permitted Encumbrances, no Consenting Creditor shall be required Group Company will grant or permit to waive subsist any Defenses Encumbrance over all or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims property, undertaking, assets, or revenues (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may bewhether present or future);
(b) HSBC-HK mayDISPOSALS: it will not, without limitationand will procure that no Group Company will, seek sell, transfer, lend, dispose of or otherwise cease to takeexercise direct control over (such transactions being hereunder referred to as "disposals") its present or future undertaking, refrain from taking assets or cause to be taken revenues, whether by one or not taken any action it deems necessary a series of transactions related or desirable in its sole discretion in the Adversary Proceedingsnot, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to makeexcept for:
(i) disposals of assets in the ordinary course of the relevant company's trading on an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; andarm's length basis;
(ii) the SFR Distribution to payment of cash in the Notes Trustee to be applied in accordance ordinary course of the relevant company's business on an arm's length basis;
(iii) payments made by it under this agreement or under any other Borrowings permitted under this agreement;
(iv) disposals with the Existing Indenture.prior written consent of the Majority Banks;
4.2 Nothing (v) disposals of assets whether by one or a series of transactions related or not the book value or consideration payable (whichever is the greater) in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor respect of which does not exceed (in its sole and absolute discretion) determines that such action Pounds)10,000,000 (or omission):its equivalent in other currencies) in respect of any one disposal or which when aggregated with all other such disposals in any one calendar year does not exceed (Pounds)20,000,000 (or its equivalent in other currencies);
(avi) would be contrary payments made by it in respect of the Acquisition;
(vii) disposals from any Group Company to any applicable law or regulation or might affect directly or indirectly its reputation; orObligor;
(bviii) would result in such Consenting Creditor incurring disposals from any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject non-Obligor to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBCnon-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:Obligor;
(aix) the Backstop Claims disposals of that Backstop Party as of the Backstop Deadline; divided bysurplus assets at market value and on an arm's length basis;
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) disposals of assets in exchange for other assets of a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.comparable value;
Appears in 2 contracts
Samples: Facilities Agreement (Rose Acquisition Corp), Facilities Agreement (Rose Acquisition Corp)
Undertakings. 4.1 Subject to Clause 4.2While any Additional Tier 1 Security remains outstanding, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject the Company shall (if and to the termsextent permitted by the Applicable Regulations from time to time and only to the extent that such undertaking would not cause a Regulatory Event to occur), conditions and limitations set forth herein, it will comply save with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementapproval of an extraordinary Shareholder resolution:
(a) no Consenting Creditor shall not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be required to waive any Defenses or be prohibited from taking any action to preserve the validitythat, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor upon Automatic Conversion of the Club Loans and/or Notes (Additional Tier 1 Securities, Ordinary Shares could not, under any applicable law then in effect, be legally issued as the case may be)fully paid;
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedingsevent of a Newco Scheme, provided take (or shall procure that if HSBC-HK takes any such there is taken) all necessary action to ensure that adversely affects implementation the Newco Scheme is an Exempt Newco Scheme and that immediately after completion of the Restructuring Scheme of Arrangement, any amendments to the Indenture as may be necessary to ensure that the Additional Tier 1 Securities may be converted into or exchanged for ordinary shares or units or the equivalent in Newco in accordance with the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKIndenture;
(c) in addition, use all reasonable endeavors to ensure that the Consenting Creditors who are members Settlement Shares issued upon Automatic Conversion of the Ad Hoc Group agree Additional Tier 1 Securities following a Trigger Event shall be admitted to use reasonable efforts to seek listing and trading on the approval Relevant Stock Exchange;
(d) following the Automatic Conversion of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking Additional Tier 1 Securities, take all corporate governance reasonable actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to (a) register any additional ADSs, (b) deposit a sufficient number of ADSs with the Court Supervised Arrangements. Without limiting the generality of the foregoingADS Depository, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined ensure that such ADSs shall continue to be listed on the New York Stock Exchange or, if the ADSs cease to be listed on such exchange, to be admitted to trading on a national securities exchange in the Solicitation Plan)United States;
(e) notwithstanding any Settlement Shares Offer, at all times keep available for issue, free from pre-emptive or any other party who would be authorized preferential rights, sufficient Ordinary Shares to act on behalf enable Automatic Conversion of the Plan Debtors Additional Tier 1 Securities to be satisfied in full;
(f) in circumstances where the provisions of this First Supplemental Indenture or their successor entities in connection with implementation the Additional Tier 1 Securities contemplate the appointment of a Settlement Share Depository, the Company shall use all reasonable endeavors to promptly appoint such Settlement Share Depository; and
(g) where the provisions of the Chapter 11 PlanIndenture require or provide for a determination by an Independent Financial Adviser, the Court Supervised Arrangement or any Restructuring, Company shall be acceptable use all reasonable endeavors promptly to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or appoint an Independent Financial Adviser for such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionpurpose.
Appears in 2 contracts
Samples: First Supplemental Indenture (Lloyds Banking Group PLC), First Supplemental Indenture (Lloyds Banking Group PLC)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably 7.1 The Issuer hereby undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor The Issuer shall pay to the Payees named on the Note, all Principal Subscription Amounts in accordance with the repayment schedule specified in the Note, such repayment to be required made by GIRO into the MSense Account or in such other manner as may be notified by MSense to waive any Defenses or be prohibited the Issuer from taking any action time to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)time;
(b) HSBC-HK may, without limitation, seek The Issuer shall immediately inform MSense in writing of any change to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in information provided by the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKIssuer;
(c) The Issuer shall immediately notify MSense of the occurrence of any Event of Default;
(d) The Issuer shall not pass any resolution approving any change in additiondirectors or shareholders of the Issuer or the divestment of any or all of the shareholding of any shareholder, without obtaining the prior written consent of MSense;
(e) The Issuer shall not pass any resolution for the winding-up of the Issuer, nor cause a petition for winding-up to be presented against the Issuer, or the appointment of a receiver or receiver and manager of the respective undertakings or assets of the Issuer; and
(f) The Issuer shall not act in any manner that constitutes a breach of any terms of any Note Document, the Consenting Creditors who are members Privacy and Data Protection Policy or the Code of Conduct;
(g) The Issuer shall comply, in all respect, with all laws of any applicable jurisdiction;
(h) The Issuer shall comply with all requirements pertaining to the Ad Hoc Group agree registration of prospectuses and/or any applicable exemptions from the requirement to use reasonable efforts to seek register a prospectus under the approval laws of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to makeany applicable jurisdiction, including without limitation:
(i) an Interim Distribution Where a Note is issued under the Small Offers Exemption, the maximum amount of Promissory Notes the Issuer issues during a 12 months period shall, together with funds raised through the issuance of other Securities and Debentures during that is not less than US$75 million same 12 months period, be S$5,000,000 or such other amount as from time to time notified on the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced Platform. The maximum amount shall be calculated on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; anda 12 months rolling basis;
(ii) Where a Note is issued under the SFR Distribution to Private Placement Exemption, the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) heretoIssuer has not made, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such partiesmake, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation any fund-raising, during any 12 months period, any offers of Securities and Debentures, including Issue Requests, to more than 50 persons, including the Chapter 11 Plan, Payees or potential payees approached through the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.Platform;
Appears in 2 contracts
Samples: Issuer’s Agreement, Payee's Agreement
Undertakings. 4.1 34.1 The Transferors hereby agrees with and undertakes to the Transferee that, from the date hereof and prior to the Delivery Date, the Object Company shall, and the Transferors shall procure the Object Company to, provide to the Transferee and such representatives of the Transferee who are directly involved in and, at the reasonable request of the Transferee, to potential financing sources in connection with the transactions contemplated hereby (the “Transferee’s Representatives”), reasonable access to the Object Company’s offices, properties, books and records, officers, counsel, accountants and contracts during normal business hours, in order for the Transferee and the Transferee’s Representatives to have an opportunity to make such investigations of the affairs of the Object Company and its business; provided, however, that any on-site investigation shall be upon reasonable prior notice and shall not unreasonably disrupt the personnel and operations of the Object Company.
34.2 Subject to Clause 4.2the terms and conditions herein provided and prior the Delivery Date, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as Transferors and the case may be);
(b) HSBC-HK mayTransferee agrees to, without limitationfrom time to time, seek whether before, at or after the Delivery Date, use all commercially reasonable efforts to take, refrain from taking or cause to be taken taken, all actions and to do, or not taken any action it deems necessary cause to be done, all things necessary, proper or desirable in its sole discretion in advisable to consummate and make effective as promptly as practicable the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as transactions contemplated hereby and to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance cooperate with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied other parties in accordance connection with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
using all commercially reasonable efforts (a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
to obtain all necessary consents and approvals from other parties to material loan agreements, leases and other contracts, (b) aggregate Backstop Claims of all Backstop Parties as of to obtain the Backstop Deadline; consents, approvals, licenses, permits and authorizations that are required to be obtained from any governmental authority, (c) US$150,000,000to prevent the entry of, or to lift or rescind, any judgments or outstanding orders, injunctions, decrees, stipulations or awards of any nature adversely affecting the ability of the parties to consummate the transactions contemplated hereby, (d) to effect all necessary registrations and filings and submissions of information requested by governmental authorities, and (e) to fulfill all conditions to the Contract.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized 34.3 Subject to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made of the Contract and until the Delivery Date, the Object Company and the Transferors shall use all reasonable efforts to preserve the Object Company’s business intact, to maintain the assets business, unusual condition, results of operation or prospects of the Object Company (including the Hydropower Project) in the same condition as on the date hereof (and with respect to assets, ordinary wear and tear excepted), to keep available to the Object Company the services of persons employed by the Plan Administrator, such other parties and/or Object Company and to preserve the Plan Debtors (including any goodwill of customers and all expenditures for counsel or other advisors), in each case, which shall be satisfactory others having business relations with the Object Company.
34.4 From the date hereof up to the Creditor Plan ProponentsDelivery Date, the Transferors and the Object Company shall not, directly or indirectly, (a) solicit, initiate or encourage the submission of any inquiries, discussions or proposals or offers from any person relating to a possible disposition of any registered capital or any material portion of the assets of the Object Company, (b) continue, propose, solicit, initiate, encourage or enter into negotiations or discussions relating to a possible disposition of any registered capital or any material portion of the assets of the Object Company, (c) enter into or consummate any agreement or understanding providing for the disposition of any capital stock or any material portion of the assets of the Object Company, or (d) assist, participate in their sole discretionor encourage any effort or attempt by any other person to do or seek any of the foregoing. The Transferors and the Object Company shall promptly notify the Transferee of, and communicate to the Transferee the terms of, any such inquiry, proposal or request for information received by, or negotiations or discussions sought with, the Object Company.
Appears in 2 contracts
Samples: Equity Interest Transfer Contract (China Hydroelectric Corp), Equity Interest Transfer Contract (China Hydroelectric Corp)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably The Manager undertakes with the Bank that throughout the Security Period (as such term is defined in the General Assignment dated 20 November 2007 (the "General Assignment") executed by the Borrower in favour of each other Consenting Creditor that, subject the Bank):
4.1 the Manager will not agree or purport to agree to any amendment or variation of the Management Agreement without the prior written consent of the Bank;
4.2 the Manager will procure that any sub-manager appointed by it pursuant to the termsprovisions of the Management Agreement will, conditions and limitations set forth hereinon or before the date of such appointment, it enter into an undertaking in favour of the Bank in substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will comply with not, without the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided thatprior written consent of the Bank, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking take any action to preserve the validity, existence or priority of institute any of its rights and Claims (including seeking acceptance of proceedings or make or assert any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor claim on or in respect of the Club Loans and/or Notes Ship or its policies and contracts of insurance (which expression includes all entries of the Ship in a protection and indemnity or war risks association) which are from time to time during the Security Period (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that term is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation PlanGeneral Assignment) shall include all in place or taken out or entered into by or for the benefit of the parties referred Borrower (whether in the sole name of the Borrower or in the joint names of the Borrower and the Bank or otherwise) in respect of the Ship and her Earnings (as such term is defined below) or otherwise howsoever in connection with the Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the "Insurances") or all moneys whatsoever from time to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything time due or payable to the contrary contained herein Borrower during the Security Period (as such term is defined in the General Assignment) arising out of the use or operation of the Ship including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charter party or other contract for the employment of the Ship (the "Earnings") or any other Claims such Consenting Creditor property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against such parties arising out of the Borrower or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings otherwise in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis Ship and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator its Earnings, Insurances and Requisition Compensation (as such term is defined in the Solicitation Plan), or any other party who would be authorized General Assignment) to act on behalf the claims of the Plan Debtors or their successor entities Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in connection with implementation respect of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties Borrower and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in each case, which shall be satisfactory to competition with the Creditor Plan Proponents, in their sole discretion.Bank;
Appears in 1 contract
Samples: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject Without prejudice to the termsprovisions of Clause 8, conditions the Director undertakes with Stichting Holding and limitations set forth herein, the Security Trustee with effect from the date of this Agreement and as long as it will comply with the Consenting Creditors’ undertakings serves as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided director that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor it shall continue to be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority sole director of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)Stichting Holding;
(b) HSBC-HK maysubject to Clause 8.2 and 8.3, without limitationit shall only resign from its position as director of Stichting Holding once a suitable person, seek trust or administration office, reasonably acceptable to takethe Security Trustee, refrain from taking or cause after having consulted the Secured Creditors, other than the Covered Bondholders, has been contracted to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedingsact as director of Stichting Holding, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as subject to HSBC-HK without further obligation hereunder on the part of HSBC-HKRating Agency Confirmation;
(c) it shall manage the affairs of Stichting Holding in addition, accordance with proper and prudent Dutch business practice and in accordance with the Consenting Creditors who are members requirements of Dutch law and Dutch accounting practice with the same care it exercises or would exercise the administration of similar matters whether held for its own account or for the account of third parties;
(d) it and Stichting Holding will refrain from any taking action detrimental to the rights and obligations of the Ad Hoc Group agree CBC under the Transaction Documents and shall undertake no other business, except as provided for in the Transaction Documents;
(e) it will not enter into any agreement in relation to use reasonable efforts the CBC other than the Transaction Documents to seek which it is a party, without the approval prior written consent of the Bankruptcy Court Security Trustee and subject to Rating Agency Confirmation;
(f) it shall exercise all its rights and/or powers as director of Stichting Holding in compliance with the Transaction Documents;
(g) it shall not, as director of Stichting Holding, engage external advisers without the prior written consent of the Security Trustee, which may consent shall be pursuant presumed to have been given if the Security Trustee will not have replied within five (5) Business Days from the date of the written request from Stichting Holding;
(h) it shall not, as director of Stichting Holding, pass any resolution for the amendment of the articles of association of the CBC or the appointment of a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:director of the CBC, without the prior written consent of the Security Trustee;
(i) an Interim Distribution it undertakes to procure that is Stichting Holding shall be and continues to be the sole shareholder of the CBC;
(j) it shall not less than US$75 million as director of Stichting Holding pass any resolution (i) to issue any additional shares in the Notes Trustee capital of the CBC or (ii) to transfer shares in the capital of the CBC or (iii) to grant rights to third parties to acquire shares in the capital of the CBC or (iv) to pledge, dispose of or encumber in any other way the shares in the capital of the CBC;
(k) it shall as director of Stichting Holding exercise its voting and the Club Loan Agent other shareholder rights and powers (if any) in accordance with the Agreed Participation CBC's obligations under the Transaction Documents and/or as otherwise instructed by the Security Trustee;
(withoutl) it shall not, as director of Stichting Holding, novate or amend this Agreement without the prior written consent of the Security Trustee;
(m) it shall not, as director of Stichting Holding, take action (i) to dissolve (ontbinden) the CBC, (ii) to enter into a legal merger (juridische fusie) or legal demerger (juridische splitsing) involving the CBC, (iii) to have the CBC converted (conversie) into a foreign entity, or (iv) to have the CBC request the court to grant a suspension of payments (surseance van betaling), or (v) to have the CBC declared bankrupt (failliet);
(n) it shall not, as director of Stichting Holding, take action (i) to dissolve Stichting Holding, (ii) to enter into a legal merger or legal demerger involving Stichting Holding or (iii) to have Stichting Holding converted into a foreign entity, or (iv) to have Stichting Holding request the court to grant a suspension of payments, or (v) to have Stichting Holding declared bankrupt;
(o) it shall procure that the Issuer, the Security Trustee and the Rating Agency are notified in writing forthwith upon the Director becoming aware of any steps being taken by any party for the avoidance winding-up, liquidation or bankruptcy or the becoming subject to any analogous insolvency proceedings under any applicable law of doubtStichting Holding, any Indebtedness being reduced on account or of any Interim Distributions steps or SFR Distributions proceedings being taken against Stichting Holding for the enforcement of any debt or obligation or any of the events listed in Clause 8.2 hereof has taken place and in particular that have not occurred at that timethe Issuer and the Security Trustee are notified in writing within two (2) calendar days of any summons to be applied in accordance attend court hearings on a petition for bankruptcy being served on or received by Stichting Holding;
(p) it shall comply with the Existing Indenture and the Club Loan requirements of Dutch law regarding services as provided for in this Agreement, respectivelyincluding the Act on the Supervision of Trust Offices, as amended from time to time; and
(iiq) it shall as director of Stichting Holding procure that Stichting Holding will after the SFR Distribution adoption and approval of the CBC's annual accounts, each calendar year resolve that the CBC shall pay out any profit amount resulting from item (ix) of the Available Revenue Funds, by way of dividend to Stichting Holding and it shall as director of Stichting Holding procure that Stichting Holding shall, within a period of fifteen (15) Business Days after the receipt of such amount, donate such amount, after deduction of any amounts owed to the Notes Trustee tax authorities, to be applied in accordance with the Existing Indenturea charitable purpose.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Samples: Management Agreement
Undertakings. 4.1 Subject to Clause 4.2The Trust agrees with you, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor for your benefit, that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:: ------------
(a) no Consenting Creditor The Trust shall be required sell Shares of the Funds so long as it has such Shares available for sale and shall cause the transfer agent (the "Transfer -------- Agent") to waive any Defenses record on its books the ownership of such Shares registered in ----- such names and amounts as you have requested in writing or be prohibited from taking any action other means, as promptly as practicable after receipt by the Trust of the payment therefor. The Trust will make such filings under the Investment Company Act with, and pay such fees to, the Commission as are necessary to preserve the validity, existence or priority register Shares of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, Fund sold by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act you on behalf of the Plan Debtors or their successor entities in connection with implementation Trust. Prior to the termination of the Chapter 11 Planthis Agreement, the Court Supervised Arrangement Trust will not file any amendment to any Registration Statement or amendment or supplement to any Restructuring, shall be acceptable Prospectus or SAI (whether pursuant to the Creditor Plan Proponents (Securities Act, the Investment Company Act, or otherwise) without prior notice to you; provided, however, that nothing contained in -------- ------- this Agreement shall in any way limit the Trust's right to file such amendments to any Registration Statement, or amendments or supplements to any Prospectus or SAI as defined the Trust may deem advisable, such right being in the Solicitation Plan)all respects absolute and unconditional, and the Plan Administrator or such other party or parties it being understood that this proviso shall not be considered acceptable relieve the Trust of its obligation to give prior notice of any such amendment or supplement to you. Subject to the Creditor Plan Proponent unless foregoing sentence, if the Plan Administrator filing of any Prospectus or such other party or partiesSAI, as the case may be, have agreed contained in any Registration Statement at the relevant Effective Date, or any amendment or supplement thereto, is required under Rule 497, the Trust will cause such Prospectus or SAI, and any amendment or supplement thereto, to be filed with the Commission pursuant to the terms applicable paragraph of Rule 497 within the time period prescribed and will, if requested, provide evidence satisfactory to you of such timely filing. The Trust will promptly advise you (xi) when such Prospectus or SAI shall have been filed (if required) with the Commission pursuant to Rule 497, (ii) when, prior to termination of this Agreement, any amendment to any Registration Statement shall have been filed or become effective, (iii) of any request by the Commission for any amendment of any Registration Statement or amendment or supplement to any Prospectus or SAI or for any additional information relating to or that could affect disclosure in any of the foregoing, (iv) of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust under the Investment Company Act, or the institution or (to the best knowledge of the Trust) threatening of any proceeding for that purpose, and (v) of the receipt by the Trust of any notification with respect to the suspension of the qualification of the offer or sale of Shares of a Fund in any jurisdiction or the initiation or (to the best knowledge of the Trust) threatening of any proceeding for such purpose. The Trust will use its best efforts to prevent the issuance of any such order or suspension and, if issued, to obtain as soon as possible the withdrawal or suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered under the Securities Act, any event occurs as a result of which such Prospectus or SAI would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend any Registration Statement or amend or supplement any Prospectus or SAI to comply with the Securities Act, the Investment Company Act or the Rules and Regulations thereunder, the Trust will notify you promptly of any such circumstance and promptly will prepare and file with the Commission, subject to the third sentence of Section 6(a), an amendment or supplement which will correct such statement or omission or effect such compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its shareholders and, subject to Section 8 of this Agreement, to you (with sufficient copies for the Authorized Dealers), a report containing the financial statements required to be included in such reports under Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as many conformed copies of the Registration Statements including exhibits thereto, on each Effective Date, as you may reasonably request for yourself and for delivery to the Authorized Dealers and, so long as delivery of a Prospectus or SAI by you or any Authorized Dealer may be required by law, the number of copies of each Prospectus and each SAI as you may reasonably request for yourself and for delivery to the Authorized Dealers.
(e) To the extent required by applicable state law, the Trust will use its best efforts to arrange for the qualification of an appropriate number of the Shares of the Funds for sale under the laws of such of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, and such other jurisdiction as you and the Trust may approve, and will maintain such qualifications in effect as long as may be reasonably requested by you, provided that the Trust shall not be required in connection herewith or as a condition hereto to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction. You shall furnish such information and other material relating to your affairs and activities as may be required by the Trust in connection with such qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and, subject to Section 8 of this Agreement, the Trust, if so requested, will furnish to you, as soon as they are available (with sufficient copies for the Authorized Dealers), copies of all reports, communications and financial statements sent by the Trust to its shareholders or filed by, or on behalf of, the Trust with the Commission.
(g) The Trust agrees that on each date the Trust is required to file with the Commission a notice under paragraph (b)(1) of Rule 24f-2 under the Investment Company Act, the Trust, if so requested, shall furnish to you a copy of the opinion of counsel for the Trust required by such Rule to the effect that the Shares covered by the notice were legally issued, fully paid and nonassessable. The Trust further agrees that if, in connection with the filing of any post-effective amendment to any Registration Statement after the date of this Agreement:
(i) a budget change is made to the statements under the caption "Shares of the Fund" in any Prospectus or budgets SAI that is deemed material by you, the Trust, if so requested, shall furnish to you an opinion of counsel for the Plan Debtors Trust, dated the date of such post-effective amendment, to the effect of paragraph 2 (which to the extent it relates to the description of the Shares);
(ii) the Fund Agreements are amended or modified in any manner, the Trust, if so requested, shall include all disbursements expected furnish to be you an opinion of counsel for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made by to the Plan Debtors, whether expressly provided for statements under the Restructuring Documents caption "Taxation" in any Prospectus or otherwiseSAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the periods prior Trust, dated the date of such post-effective amendment. Any opinion or statement furnished pursuant to this Section 6(g) shall be modified as necessary to relate to this Agreement and after the Restructuring Fund Agreements and the Rules and Regulations as then in effect and shall state that the Authorized Dealers may rely on it.
(h) The Trust, if so requested, shall furnish to you on each subsequent Effective Date), or (y) other arrangements governing Date with respect to an amendment of a Registration Statement which first includes certified financial statements for the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors)preceding fiscal year, in respect of a Fund, a copy of the report of the Trust's independent public accountants with respect to the financial statements and selected per share data and ratios relating to such Fund, addressed to you. The Trust further agrees that the Trust, if so requested, shall furnish to you (i) on each casedate on which the Trust, which shall be pursuant to the preceding sentence, furnishes to you a report of its independent public accountants, a certificate of its treasurer or assistant treasurer in a form reasonably satisfactory to you describing in reasonable detail how the Creditor Plan Proponentsfigures included under the captions "Portfolio Transactions" and "Performance Information" (or similar captions) in the Prospectus or SAI of such Fund and the figures relating to the aggregate amounts of remuneration paid to officers, trustees and members of the advisory board and affiliated persons thereof (as required by Section 30(d)(5) of the Investment Company Act) were calculated and confirming that such calculations are in their sole discretionconformity with the Rules and Regulations under the Investment Company Act and (ii) on each date the Trust files with the Commission the Trust's required semi-annual financial statements, a certificate of its treasurer or assistant treasurer in a form reasonably satisfactory to you, describing the manner in which such financial statements were prepared and confirming that such financial statements have been prepared in conformity with the Rules and Regulations under the Investment Company Act.
Appears in 1 contract
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject Without prejudice to the termsprovisions of Clause 8, conditions the Director undertakes with Stichting Holding and limitations set forth herein, the Security Trustee with effect from the date of this Agreement and as long as it will comply with the Consenting Creditors’ undertakings serves as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided director that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor it shall continue to be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority sole director of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)Stichting Holding;
(b) HSBC-HK mayit shall only resign from its position as director of Stichting Holding once a suitable person, without limitationtrust or administration office, seek reasonably acceptable to takethe Security Trustee, refrain from taking or cause has been contracted to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedingsact as director of Stichting Holding, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as subject to HSBC-HK without further obligation hereunder on the part of HSBC-HKRating Agency Confirmation;
(c) it shall manage the affairs of Stichting Holding in addition, accordance with proper and prudent Dutch business practice and in accordance with the Consenting Creditors who are members requirements of Dutch law and Dutch accounting practice and with the same care that it exercises or would exercise in connection with the administration of similar matters held for its own account or for the account of third parties;
(d) it and Stichting Holding will refrain from any action detrimental to the obligations of the Ad Hoc Group agree CBC under the Transaction Documents and shall undertake no other business, except as provided for in the Transaction Documents;
(e) it will not enter into any agreement in relation to use reasonable efforts the CBC other than the Transaction Documents to seek which it is a party, without the approval prior written consent of the Bankruptcy Court Security Trustee and subject to Rating Agency Confirmation;
(f) it shall exercise all its rights and powers as director of Stichting Holding in compliance with the Transaction Documents;
(g) it shall not as director of Stichting Holding engage external advisers without the prior written consent of the Security Trustee, which may consent shall not be pursuant to unreasonably withheld;
(h) it shall not as director of Stichting Holding pass any resolution for the amendment of the articles of association of the CBC or the appointment of a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:director of the CBC, without the prior written consent of the Security Trustee;
(i) an Interim Distribution it undertakes to procure that is Stichting Holding shall be and continues to be the sole shareholder of the CBC;
(j) it shall not less than US$75 million as director of Stichting Holding pass any resolution (i) to issue any additional shares in the Notes Trustee capital of the CBC or (ii) to transfer shares in the capital of the CBC or (iii) to grant rights to third parties to acquire shares in the capital of the CBC or (iv) to pledge, dispose of or encumber in any other way the shares in the capital of the CBC;
(k) it shall as director of Stichting Holding exercise its voting and the Club Loan Agent other shareholder rights and powers (if any) in accordance with the Agreed Participation CBC's obligations under the Transaction Documents and/or as otherwise instructed by the Security Trustee;
(without, for l) it shall not novate or amend this Agreement without the avoidance prior written consent of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that timethe Security Trustee;
(m) it shall take no action (i) to be applied in accordance with dissolve the Existing Indenture and the Club Loan AgreementCBC, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in legal merger or legal demerger involving the form set out in Schedule 11 CBC, (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)iii) to vote in favour have the CBC converted into a foreign entity, (iv) to have the CBC request the court to grant a suspension of any Chapter 11 Plan payments or take a position in (v) to have the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:CBC declared bankrupt;
(an) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
it shall take no action (bi) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; to dissolve Stichting Holding, (cii) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), to enter into a legal merger or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.legal demerger involving Stichting Holding,
Appears in 1 contract
Samples: Management Holding Agreement
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably Each Mortgagor undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply agrees with the Consenting Creditors’ undertakings Offshore Security Agent throughout the continuance of this Deed and so long as set forth the Secured Indebtedness or any part thereof remains owing that each Mortgagor will, unless the Offshore Security Agent (acting on the instructions of the Facility Agent) otherwise agrees in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementwriting:
(a) no Consenting Creditor shall be required not create or attempt or agree to waive create or permit to arise or exist any Defenses Encumbrance over all or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor part of the Club Loans and/or Notes Shares or any interest therein or otherwise assign, deal with or dispose of all or any part of the Shares (as the case may beexcept under or pursuant to this Deed);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking not grant in favour of any other person any interest in or cause to be taken any option or not taken other rights in respect of any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKShares;
(c) in addition, at all times remain the Consenting Creditors who are members beneficial owner of the Ad Hoc Group agree to use reasonable efforts to seek Shares set opposite its name in Schedule 1 and the approval relevant Additional Shares and ensure that the Shares at all times constitute no less than fifty-one percent (51%) of the Bankruptcy Court entire issued share capital from time to time of the Company (which may be pursuant including but not limited to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is when the Shares do not constitute no less than US$75 million fifty-one percent (51%) of the entire issued share capital from time to time of the Notes Trustee and Company, immediately take all actions to mortgage all the Club Loan relevant shares in the issued share capital of the Company in favour of the Offshore Security Agent in accordance with Clause 2.4 to fulfil the Agreed Participation obligation hereunder);
(without, for d) promptly upon the avoidance of doubt, any Indebtedness being reduced on account appointment of any Interim Distributions new director of the Company (if such new director is appointed or SFR Distributions nominated by or on behalf of any Mortgagor or in the name of any Mortgagor), deposit or procure that have not occurred at that time) to there be applied in accordance deposited with the Existing Indenture and the Club Loan Agreement, respectively; and
Offshore Security Agent (iiA) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if a signed undated letter of resignation by such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK director in the form set out in Schedule 11 2; (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that B) an undated board resolution of all the Schedule directors of Excluded Parties (as defined the Company appointed or nominated by or on behalf of any Mortgagor or in the Solicitation Plan) shall include all name of any Mortgagor to accept the parties referred to directors’ resignations and appoint new directors in the form set out in Schedule 12 3; (Excluded Release Parties) hereto, C)duly executed letters of undertaking and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to authorization from such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or director relating to the Club Loans or the Notes or enforcement thereof documents (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated A) and (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)B) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee orabove, in the alternative, by the Majority Backstop Parties form set out in Schedule 4;
(e) punctually pay all calls or other payments due in respect of all or any part of the applicable Senior Claims as Shares;
(f) not voluntarily commence to wind up or dissolve the Company;
(g) do or permit to be done every act or thing which the Offshore Security Agent may from time to time reasonably require for the purpose of enforcing the rights of the Backstop DeadlineOffshore Security Agent hereunder;
(h) immediately following not do or cause or permit to be done anything which may in any way adversely affect the Backstop Deadline on security created hereunder or the following basis and notify each Backstop Party rights of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000Offshore Security Agent hereunder.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Samples: Share Mortgage (MIE Holdings Corp)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably The Manager undertakes with the Bank that throughout the Security Period (as such term is defined in the General Assignment dated 20 November 2007 (the "General Assignment") executed by the Borrower in favour of each other Consenting Creditor that, subject the Bank):
4.1 the Manager will not agree or purport to agree to any amendment or variation of the Management Agreement without the prior written consent of the Bank;
4.2 the Manager will procure that any sub-manager appointed by it pursuant to the termsprovisions of the Management Agreement will, conditions and limitations set forth hereinon or before the date of such appointment, it enter into an undertaking in favour of the Bank in substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will comply with not, without the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided thatprior written consent of the Bank, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking take any action to preserve the validity, existence or priority of institute any of its rights and Claims (including seeking acceptance of proceedings or make or assert any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor claim on or in respect of the Club Loans and/or Notes Ship or its policies and contracts of insurance (which expression includes all entries of the Ship in a protection and indemnity or war risks association) which are from time to time during the Security Period (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that term is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation PlanGeneral Assignment) shall include all in place or taken out or entered into by or for the benefit of the parties referred Borrower (whether in the sole name of the Borrower or in the joint names of the Borrower and the Bank or otherwise) in respect of the Ship and her Earnings (as such term is defined below) or otherwise howsoever in connection with the Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the "Insurances") or all moneys whatsoever from time to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything time due or payable to the contrary contained herein Borrower during the Security Period (as such term is defined in the General Assignment) arising out of the use or operation of the Ship including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charter party or other' contract for the employment of the Ship (the "Earnings") or any other Claims such Consenting Creditor property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against such parties arising out of the Borrower or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings otherwise in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis Ship and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator its Earnings, Insurances and Requisition Compensation (as such term is defined in the Solicitation Plan), or any other party who would be authorized General Assignment) to act on behalf the claims of the Plan Debtors or their successor entities Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in connection with implementation respect of the Chapter 11 PlanBorrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
4.5 the Manager will discontinue any such action or proceedings or claim which may have been taken, instituted or made or asserted, promptly upon notice from the Court Supervised Arrangement or Bank to do so;
4.6 the Manager will promptly notify the Bank if at any Restructuring, shall be acceptable time the amount owed by the Borrower to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable Manager pursuant to the Creditor Plan Proponent unless Management Agreement (whether in respect of the Plan Administrator Manager's remuneration or disbursements or otherwise) exceeds US$100,000 or the equivalent in other currencies; and
4.7 the Manager will provide the Bank with such other party or parties, information concerning the Ship as the case Bank may be, have agreed from time to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretiontime reasonably require.
Appears in 1 contract
Samples: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. Each Party undertakes that:
4.1 Subject on each occasion that it wishes to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to Use the terms, conditions and limitations set forth hereinData, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementonly do so where:
(a) no Consenting Creditor shall be required 4.1.1 A Patient has provided explicit Consent for the Party to waive any Defenses or be prohibited from taking any action do so; or
4.1.2 Where the Patient lacks capacity to preserve the validitymake that decision themselves, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent Consent has been given in accordance with the Agreed Participation (withoutexercise of parental responsibility and/or in accordance with the Mental Xxxxxxxx Xxx 0000 it is determined that such access is in the Patient‟s best interests, for or authorised by a valid and applicable Lasting Power of Attorney or a Court appointed deputy, as applicable; or
4.1.3 Where Consent cannot be provided by or on behalf of a Patient, an Emergency Override may be used where a Legitimate Relationship exists between the Authorised System User and the Patient and where Use of the Data is lawful and necessary without Consent from the Patient, having due regard to the DPA, common law duty of confidence and appropriate legal requirements and professional codes of conduct. For the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have an Emergency Override cannot occurred at that time) to be applied used where a Patient has explicitly refused Consent and has not withdrawn such Consent andthat it will record the grounds for each such Use in accordance with this clause.
4.2 it will use Data received from any other Partysolely for the Existing Indenture Purposes;
4.3 it will only record and store Data in such a manner as to ensure compliance with the DPA;
4.4 it will notify the relevant Data Controller of the respective Party of any breaches of this Agreement or other failure to comply with or breach of the DPA or common law duty of confidence in relation to any Data originating from that Party within 24 hours of becoming aware of any such breach or failure to comply;
4.5 it will notify the relevant Data Controller of the respective Party of any known inaccuracies within any Data originating from that Party within 24 hours of becoming aware of any such inaccuracy;
4.6 it will permit any of the other Partiesto audit its compliance with its obligations under this Agreement, including by an independent external auditor agreed between the Parties, upon reasonable request and written notice. The Parties may agree upon a third party to receive and coordinate all requests for any such audits and to provide advice to the Parties as to what may be a reasonable request;
4.7 it will provide upon request to any Data Subject (and offer to provide at the point of any contact, assessment and care provision):
4.7.1 The identity of the Parties to this Agreement and the Club Loan Data Controllers of the Data that may be covered by this Agreement. If the Party has nominated a representativesuch as a Caldicott Guardian for the purposes of ensuring compliance with the DPA 1998, respectivelythe identity of that representative;
4.7.2 The purpose or purposes for which Data are intended to be processed and shared under this Agreement;
4.7.3 Information on the rights of Data Subjects under the DPA 1998, particularly in relation to sensitive personal data;
4.7.4 Details of the Party‟s procedures to enable Data Subjects to access their records, including audit trails, as regards access to their data;
4.7.5 Details of the Party‟s procedures which may have to be initiated when the Party suspects that a Data Subject has been or is at risk of abuse including when personal data will be shared and how it will be used;
4.7.6 Details of the Party‟s complaints procedures to follow in the event that a Data Subject believes personal information about him or her has been inappropriately disclosed;
4.7.7 Details of how personal information provided to the Party will be recorded, stored and the length of time it will be retained and on what lawful basis it is held; and
(ii) the SFR Distribution 4.7.8 Any further information which may be reasonably required to the Notes Trustee to be applied ensure that processing in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be releasedData Subject is fair.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Samples: Information Sharing Agreement
Undertakings. 4.1 Subject In addition to their specific undertakings referred to in Clause 4.2, each Consenting Creditor irrevocably undertakes 3 or elsewhere in this Agreement the Parties have agreed as follows:
7.1 Each of the Parties shall use its best endeavours to procure that the Company applies for and obtains the Council’s approval under the Media Act and use its best endeavours to procure that the Company applies for and obtains the registration of the Purchaser as the owner of the Ownership Interest in the Commercial Register of the relevant Commercial Court.
7.2 Each of the Parties shall use its best endeavours to procure that the Company convene the general meeting where the Company members are asked to approve the transfer of the Ownership Interest for registration and the submission of such transfer for the Council’s approval under the Media Act.
7.3 The Seller shall vote in favor of the transfer of the Ownership Interest at such general meeting of the Company. The Purchaser shall vote in favour of each other Consenting Creditor that, subject the transfer of the Ownership Interest in accordance with this Agreement at the general meeting of the Company should the Purchaser acquire any ownership interest in the Company prior to the termsCompletion or the Purchaser shall ensure that a person holding an ownership interest and controlled either directly or indirectly by the Purchaser shall vote in favour of the transfer of the Ownership Interest in accordance with this Agreement.
7.4 The Seller undertakes that he shall not (i) withdraw any application filed pursuant to Clause 3.6 of this Agreement, conditions and limitations set forth herein(ii) withdraw or contest in any way a request for consent to the Council in respect of the transfer of the Ownership Interest to the Purchaser, it will comply (iii) withdraw or contest in any way the application filed with the Consenting Creditors’ undertakings Commercial Register of the relevant Commercial Court to register the Purchaser as set forth the owner of the Ownership Interest, or (iv) initiate any Claim as from the date hereof; provided that the Seller shall be entitled from the date which is 85 (eighty-five) calendar days from the date hereof until the date on which the Purchaser deposits the Purchase Price into the Escrow Account and the Escrow Agent notifies the Seller hereof to initiate Claims solely on account of the fact that the applicable statute of limitations would otherwise expire and shall promptly deliver copies of any such Claim to the Purchaser. .
7.5 The Seller undertakes that in Schedule 3 (Consenting Creditors’ undertakings) provided thatthe event this Agreement or the application to register the Purchaser as the owner of the Ownership Interest hereunder is declared invalid, notwithstanding any other provision the Seller shall undertake to perform such acts as may be reasonably required by the Purchaser, including entering into a new agreement containing substantially the same sale terms as are contained in this Agreement:.
7.6 The Seller undertakes to notify the Purchaser within 15 (afifteen) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve Business Days of the validity, existence or priority receipt of valid and final court decisions including an original stamp by the relevant court in respect of the termination of any of its rights and Claims (including seeking acceptance the Approved Petitions
7.7 The Purchaser undertakes to transfer to the Seller amounts of any Claims for fees, costs and expenses under dividends relating to the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (Ownership Interest which may be pursuant to distributed from the profits generated by the Company for the financial year 2004.
7.8 In the event of a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less breach by the Seller of any obligation under Clause 7 other than US$75 million the obligation in Clause 7.6 above, the Seller shall pay to the Notes Trustee and Purchaser contractual penalty in the Club Loan Agent in accordance with the Agreed Participation amount of CZK 25.000.000,00 (without, for the avoidance of doubt, any Indebtedness being reduced on account twenty-five million Czech crowns) per each individual breach within 15 Business Days of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with such breach. In the Existing Indenture and event of a breach by the Club Loan AgreementPurchaser of any obligation under Clause 7, respectively; and
(ii) the SFR Distribution Purchaser shall pay to the Notes Trustee to be applied Seller a contractual penalty in accordance with the Existing Indenture.
4.2 amount of CZK 25.000.000,00 (twenty-five million Czech crowns) per each individual breach within 15 Business Days of any such breach. Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except interpreted as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all limitation of the parties referred Purchaser’s rights to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to conduct the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or proceedings relating to the Club Loans or Claims until the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be releasedSeller withdraws such Claims in accordance with this Agreement.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Samples: Settlement Agreement (Central European Media Enterprises LTD)
Undertakings. 4.1 Subject to The undertakings in this Clause 4.217 remain in force from the date of this Agreement for as long as any Commitment is in force or any amount is outstanding under this Agreement. The Borrower shall, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply save with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:prior approval of the Majority Lenders,
(a) not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class or type of equity share capital carrying any rights which are more favourable than such rights attaching to the Ordinary Shares, but so that nothing in this paragraph (a) shall prevent:
(i) any consolidation, reclassification or subdivision of the Ordinary Shares;
(ii) any modification of such rights which is not, in the determination in its absolute discretion of an independent financial adviser (pre-approved by the Majority Lenders, such approval not unreasonably to be withheld), prejudicial to the interests of the Lenders;
(iii) any alteration to the articles of association of the Borrower made in connection with the matters described in this Clause 17 to the extent permitted under this Clause 1817 or which is supplemental or incidental to any of the foregoing (including any amendment made to enable or facilitate procedures relating to such matters and any amendment dealing with the rights and obligations of holders of Securities, including Ordinary Shares, dealt with under such procedures);
(iv) any issue of equity share capital where the issue of such equity share capital results, or would, but for the provisions of Clause 12.4 (Procedure for exercise of Conversion Right) relating to roundings, otherwise result in an adjustment to, or a consideration with respect to the determination of, the Conversion Price;
(v) any issue of equity share capital or modification of rights attaching to the Ordinary Shares, where prior thereto the Borrower shall have instructed an independent financial adviser to determine in its absolute discretion what (if any) adjustments should be made to, or considerations should be made with respect to the determination of, the Conversion Price as being fair and reasonable to take account thereof and such independent financial adviser shall have determined in its absolute discretion either that no Consenting Creditor adjustment or consideration is required or that an adjustment to or consideration in respect of the determination of the Conversion Price is required and, if so, the new Conversion Price as a result thereof and the basis upon which such adjustment or consideration in respect of the determination is to be made and, in any such case, the date on which the adjustment or consideration in respect of the determination shall take effect (and so that the adjustment or consideration in respect of the determination shall be required to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority of any of its rights made and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may beshall take effect accordingly);
(b) HSBC-HK maynot make any issue, without limitationgrant or distribution or take or omit to take any other action if the effect thereof would be that, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part exercise of HSBC-HKConversion Rights, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
(c) not reduce its issued share capital or any uncalled liability in additionrespect thereof, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to makeor any non-distributable reserves, except:
(i) an Interim Distribution that is not less than US$75 million pursuant to the Notes Trustee terms of issue of the relevant share capital;
(ii) by means of a purchase or redemption of share capital of the Borrower to the extent, in any such case, permitted by applicable law;
(iii) where the reduction does not involve any distribution of assets;
(iv) solely in relation to a change in the currency in which the nominal value of the Ordinary Shares is expressed;
(v) to create distributable reserves;
(vi) by way of transfer to reserves as permitted under applicable law;
(vii) where the reduction is permitted by applicable law and an independent financial adviser, acting as expert and in its absolute discretion, advises that the Club Loan Agent interests of the Lenders will not be materially prejudiced by such reduction;
(viii) where the reduction is permitted by applicable law and results in accordance an adjustment to, or a consideration with respect to the Agreed Participation (withoutdetermination of, the Conversion Price or is otherwise taken into account for the avoidance purposes of doubtdetermining whether such an adjustment or consideration with respect to the determination should be made; or
(ix) provided that, without prejudice to the other provisions of this Agreement, the Borrower may exercise such rights as it may from time to time be entitled pursuant to applicable law to purchase, redeem or buy back its Ordinary Shares and any Indebtedness being reduced on account depositary or other receipts or certificates representing Ordinary Shares without the consent of any Interim Distributions Lender;
(d) provide to the Lenders, by no later than 5 Business Days prior to the Closing Date, all of the documents and evidence referred to in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Lenders (acting reasonably) provided that the conditions may be waived by the Lenders in whole or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectivelypart; and
(e) pay and discharge all Taxes due and payable by it prior to the accrual of any fine or penalty for late payment, unless (and only to the extent that) (i) payment of those Taxes is being contested in good faith, (ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided adequate reserves are being maintained for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent those Taxes and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
costs required to contest them (aiii) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
payment can be lawfully withheld and (biv) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000failure to pay those Taxes is not reasonably likely to have a material adverse effect.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Undertakings. 4.1 3.1 Subject to Clause 4.23.3 and provided that: (i) the terms set out in the Term Sheet are in all material respects reflected in the terms of each of the Cayman Scheme and the HK Scheme; (ii) no terms of either the Cayman Scheme or the HK Scheme are in any material respect inconsistent with the terms set out in the Term Sheet; and (iii) the terms of each of the Cayman Scheme and the HK Scheme (other than terms which reflect the terms set out in the Term Sheet) are: (x) terms which would customarily be included in a Cayman Islands or Hong Kong (as the case may be) scheme of arrangement of a nature similar to that of the Cayman Scheme and the HK Scheme; or (y) terms which are no less favourable to the Consenting Creditor than the terms referred to in (x) above, each and further provided that the Cooperation Agreements have been terminated, the Consenting Creditor irrevocably undertakes in favour of each other the Issuer and the Subsidiary Guarantors that it shall (or, as applicable, will procure that a duly authorised representative, proxy or nominee will), solely in its capacity as a holder of the Convertible Note, upon receipt by the Consenting Creditor that, subject to of a written request from the terms, conditions and limitations set forth herein, it will comply with Issuer reasonably in advance of the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementaction requested:
(a) no Consenting Creditor shall be required to waive any Defenses attend the Cayman Scheme Meeting and the HK Scheme Meeting either in person or be prohibited from taking any action to preserve the validity, existence or priority of any by proxy; and
(b) exercise all of its voting rights and Claims (including seeking acceptance whether by way of any Claims for feesproviding voting instructions to a proxy, costs and expenses under the Existing Finance Documentation as Accepted Claimsinstructing a representative to vote in person, or otherwise) against any obligor attributable to such principal amount of the Club Loans and/or Notes Convertible Note in which it holds a direct or beneficial interest as principal at the Record Time in favour of approving the Cayman Scheme and the HK Scheme.
3.2 Subject to Clause 3.3 and provided that: (i) the terms set out in the Term Sheet are in all material respects reflected in the terms of each of the Cayman Scheme and the HK Scheme; (ii) no terms of either the Cayman Scheme or the HK Scheme are in any material respect inconsistent with the terms set out in the Term Sheet; and (iii) the terms of each of the Cayman Scheme and the HK Scheme (other than terms which reflect the terms set out in the Term Sheet) are: (x) terms which would customarily be included in a Cayman Islands or Hong Kong (as the case may be)) scheme of arrangement of a nature similar to that of the Cayman Scheme and the HK Scheme; or (y) terms which are no less favourable to the Consenting Creditor than the terms referred to in (x) above, and further provided that the Cooperation Agreements have been terminated, the Consenting Creditor irrevocably undertakes in favour of the Issuer and the Subsidiary Guarantors that it shall not, in its capacity as a holder of the Convertible Note:
(a) object to or challenge the Cayman Scheme, the HK Scheme or any application to the Cayman Court or the High Court in respect thereof or otherwise commence any proceeding(s) to oppose or alter any Scheme Document filed by the Issuer and/or the Subsidiary Guarantors in connection with the confirmation of the Restructuring;
(b) HSBC-take, encourage, assist or support (or procure that any other person takes, encourages, assists or supports) any action for the purpose of frustrating, delaying, impeding or preventing the Cayman Scheme, the HK mayScheme or the Restructuring, including (without limitation):
(i) proposing or supporting any alternative proposal or offer from any person or entity (other than the Issuer) in respect of the Restructuring which is materially inconsistent with the terms set out in the Term Sheet; or
(ii) voting (or directing any proxy appointed by it to vote) the Convertible Note in which it holds a direct or beneficial interest as principal against the Cayman Scheme, the HK Scheme or in favour of any amendment, waiver, consent or proposal that is materially inconsistent with the terms set out in the Term Sheet; or
(iii) transfer or agree to transfer any Convertible Note in which the Consenting Creditor has a direct or beneficial interest as principal (including, without limitation, seek to take, refrain from taking any Convertible Note purchased or cause to be taken or not taken any action it deems necessary or desirable otherwise acquired by the Consenting Creditor after the date of this Agreement) unless the transferee(s) provide(s) similar undertakings set out in its sole discretion this Agreement in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation favour of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee Issuer and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing IndentureSubsidiary Guarantors.
4.2 3.3 Nothing in this Agreement shall require any the Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the samewould:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided bybe contrary to any Applicable Law;
(b) aggregate Backstop Claims result in the Consenting Creditor (or any of all Backstop Parties its Affiliates) incurring any Liability, other than as of the Backstop Deadlineexpressly contemplated by this Agreement; or
(c) US$150,000,000give rise, or be reasonably likely to give rise, to any result that is materially adverse to the interest of the Consenting Creditor or any of its Affiliates.
4.7 The Plan Administrator 3.4 Each of the Issuer and the Subsidiary Guarantors undertakes in favour of the Consenting Creditor that it shall (or, as applicable, will procure that a duly authorised representative, proxy or nominee will) perform all actions as are reasonably necessary in order to support, facilitate, implement or otherwise give effect to the Restructuring (provided that such action is consistent in all material respects with the Term Sheet) as soon as reasonably practicable, including (without limitation) to:
(a) pay or procure payments of (as defined applicable) the Instruction Fee:
(i) in accordance with Clause 4 (Instruction Fee); and
(ii) in immediately available funds free and clear of and without any deduction or withholding for or on account of Tax unless it is required to make such a deduction or withholding, in which case the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, Instruction Fee payable shall be acceptable increased to the extent necessary to ensure that the sum net of any deduction or withholding received by the Consenting Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable is equal to the Creditor Plan Proponent unless the Plan Administrator sum which it would have received had no such deduction or such other party withholding been made or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected required to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.made;
Appears in 1 contract
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject Without prejudice to the termsprovisions of Clause 8, conditions and limitations set forth herein, it will comply the Director undertakes with the Consenting Creditors’ undertakings CBC and the Security Trustee with effect from the date of this Agreement and as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided long as it serves as director that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor it shall be required to waive any Defenses or be prohibited only resign from taking any action to preserve the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation position as Accepted Claims) against any obligor director of the Club Loans and/or Notes (CBC as soon as a suitable person, trust or administration office, reasonably acceptable to the case may be)Security Trustee, after consultation with the Secured Parties, other than the Covered Bondholders, has been contracted to act as successor director of the CBC subject to Rating Agency Confirmation;
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion the CBC shall undertake no other business except as provided for in the Adversary Proceedings, provided that if HSBC-HK takes Transaction Documents until the CBC no longer has any such action that adversely affects implementation actual or contingent liabilities under any of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKTransaction Documents and any Covered Bonds;
(c) it shall manage the affairs of the CBC in additionaccordance with proper and prudent Dutch business practice and in accordance with its articles of association and in accordance with the requirements of Dutch law and Dutch accounting practice with the same care that it exercises or would exercise in connection with the administration of similar matters held for its own account or for the account of third parties;
(d) it shall continue to be the sole director of the CBC;
(e) it shall as director of the CBC not (i) agree to any alteration of any agreement including, but not limited to, the Consenting Creditors who are members Transaction Documents, to which the CBC is a party or (ii) enter into any agreement in each case without the prior written consent of the Ad Hoc Group agree Security Trustee and without notification to use reasonable efforts to seek the approval Rating Agencies and in accordance with any other requirements in any of the Bankruptcy Court Transaction Documents;
(f) it and the CBC shall refrain from any action detrimental to any of its obligations under the Transaction Documents;
(g) it shall exercise all its rights and/or powers by virtue of being director of the CBC in compliance with the Transaction Documents;
(h) it shall procure that the CBC shall at all times fulfil and comply with its obligations under each Transaction Document to which may be pursuant it is or will become a party, provided that to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian the extent that such obligations are contingent or dependent for their performance on the due performance by any other party of its obligations and Singapore law to make:undertakings under any Transaction Document such other party duly performs such obligations and undertakings thereunder;
(i) an Interim Distribution it shall as director of the CBC not engage external advisers without the prior written consent of the Security Trustee, which consent shall be presumed to have been given if the Security Trustee will not have replied within five (5) Business Days from the date of the written request from the CBC;
(j) it shall not, as director of the CBC, novate or amend this Agreement without the prior written consent of the Security Trustee;
(k) it shall as director of the CBC not take action (i) to dissolve the CBC, or (ii) to enter into a legal merger or legal demerger involving the CBC, or (iii) to have the CBC converted into a foreign entity, or (iv) to have the CBC request the court to grant a suspension of payments, or (v) to have the CBC declared bankrupt, without the prior written consent of the Security Trustee;
(l) the CBC shall continue to comply with the applicable provisions of the CRR and the Wft and with the provisions of all applicable decrees, rules, regulations and statements of policy of the relevant authority or authorities in the Netherlands, issued pursuant to or in connection with the CRR and the Wft;
(m) it shall procure that is not less than US$75 million to the Notes Security Trustee and the Club Loan Agent Rating Agencies are notified in accordance writing forthwith upon the Director becoming aware of any steps being taken by any party for the winding up, liquidation or bankruptcy of the CBC or of any steps or proceedings being taken against the CBC for the enforcement of any debt or obligation and in particular that the Security Trustee is notified in writing within two (2) calendar days of any summons to attend court hearings on a petition for bankruptcy being served on or received by the CBC;
(n) the CBC shall not engage employees and shall not enter into any agreement with respect to the rendering of services to the CBC, except as provided for in the Transaction Documents;
(o) it shall procure that the Security Trustee and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of the occurrence of any of the events set forth in Clause 8.2 hereof;
(p) it shall continue to comply with the Agreed Participation (without, requirements of Netherlands law regarding services as provided for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan this Agreement, respectivelyincluding the Dutch Act on the Supervision of Trust Offices as amended from time to time;
(q) the CBC shall hold itself as a separate entity and conduct its business in its own name;
(r) the CBC shall use separate stationary, invoices and checks; and
(iis) it shall procure that Stichting Holding will after the SFR Distribution to adoption and approval of the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to takeCBC's annual accounts, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree each calendar year resolve that the Schedule of Excluded Parties (as defined in the Solicitation Plan) CBC shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), pay out any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.profit amount resulting from item
Appears in 1 contract
Samples: Management CBC Agreement
Undertakings. 4.1 Subject to Clause 4.2Without the prior written consent of the Lender you and your subsidiaries (other than the Surviving Entity, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it as defined below) will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
not (a) no Consenting Creditor shall be required create or permit to waive subsist any Defenses mortgage, charge or be prohibited from taking any action to preserve the validity, existence or priority of other encumbrance (each a "LIEN") over any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking your or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof their assets (including, without limitation, any claims arising out the shares of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties stock of the applicable Senior Claims as Surviving Entity) other than Liens in favor of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop DeadlineLender; divided by
(b) aggregate Backstop Claims permit any disposals or leases (by one or a series of transactions) of all Backstop Parties as or a substantial part of the Backstop Deadlineyour or their business or assets; (c) US$150,000,000.
4.7 The Plan Administrator (as defined permit any material change in the Solicitation Plan), nature of your or their business as now conducted; (d) incur or permit to exist any indebtedness other party who would be authorized to act on behalf than in favor of the Plan Debtors Lender; (e) declare or their successor entities in connection with implementation pay any dividends or other distributions to your shareholders other than dividends or distributions consisting solely of capital stock of the Chapter 11 PlanBorrower and, the Court Supervised Arrangement or any Restructuringso long as no Event of Default has occurred and is continuing, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to dividends required under the terms of the Mandatorily Redeemable Preferred Stock; or (f) redeem any of the Mandatorily Redeemable Preferred Stock. For the avoidance of doubt, except as set forth in the following two sentences, nothing in this Letter-Loan Agreement shall restrict the Acquisition Company or Getty. You will (w) acquire all of the shares of capital stock of Getty in accordance with the Merger Agreement; (x) a budget or budgets for cause the Plan Debtors Acquisition Company and any subsidiaries of the Acquisition Company (which shall include all disbursements expected the "ADDITIONAL MERGER SUBSIDIARIES") to be made by merged with Getty pursuant to the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or Merger Agreement; (y) other arrangements governing the terms execute and conditions under which disbursements deliver such further documents and take such further acts as may be made reasonably requested by the Plan AdministratorLender to grant the Lender security over the shares of the surviving entity (the "SURVIVING ENTITY") promptly upon the merger of the Acquisition Company, such other parties and/or the Plan Debtors (including any Additional Merger Subsidiaries, and all expenditures for counsel or other advisors), in each case, which shall be satisfactory Getty pursuant to the Creditor Plan ProponentsMerger Agreement; and (z) from time to time cause the Surviving Entity to declare and pay such dividends as may be necessary to enable you to make any payment required under this Letter-Loan Agreement. Without the consent of the Lender you will not permit the Surviving Entity to incur or permit to remain outstanding indebtedness for borrowed money in an aggregate principal amount in excess of US$20,000,000 or the equivalent in any other currency. Without the consent of Oil Company LUKOIL you will not create or permit to subsist any Lien over any of the assets of the Surviving Entity other than (i) Liens on the assets of the Surviving Entity existing at the time of acquisition by the Borrower or any subsidiary of the Borrower of any interest in Getty, (ii) statutory liens arising by operation of law, (iii) purchase money security interests in their sole discretionfuel acquired by the Surviving Entity in the ordinary course of its retail business, and (iv) other Liens securing indebtedness for money borrowed by the Surviving Entity in an aggregate amount not greater than $5,000,000.
Appears in 1 contract
Undertakings. 4.1 Subject to At any time and until the Pledge will have been finally discharged in accordance with Clause 4.2, each Consenting Creditor irrevocably undertakes in favour 8 (Discharge of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with Pledge) the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this AgreementPledgor:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve will procure that the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor Shares will at all times represent 75% + 1 of the Club Loans and/or Notes (as voting rights attached to all shares of the case may be)Company;.
(b) HSBC-HK may, not allow that additional shares are created unless such shares are subscribed to at fair market value.
(c) undertakes not to create or permit the existence of any security interest in respect of the Shares or any part thereof (unless ranking behind the Pledge and except for the first ranking pledge granted by the Pledgor to ING BANK under the First Ranking Share Pledge Agreement) without limitation, seek to take, refrain from taking the prior written consent of the Pledgee.
(d) shall procure that no executory seizure ("uitvoerend beslag" / "saisie exécutoire") will be made on the Shares and that any conservatory seizure ("bewarend beslag" / "saisie conservatoire") thereon will be lifted within 90 days of it first being made.
(e) will cooperate with the Beneficiary and sign or cause to be taken or not taken any signed all such further documents and take all such further action it deems necessary or desirable in its sole discretion in as the Adversary ProceedingsBeneficiary may from time to time reasonably request to create, provided that if HSBC-HK takes any such action that adversely affects implementation perfect and protect the Pledge and to carry out the provisions and purposes of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;Agreement.
(cf) in additionwill not take any initiative, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions adopt or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in resolutions to dissolve the Chapter 11 Proceedings in respect thereofCompany, and defend (and procure the Company to defend) any third claims seeking to obtain the dissolution of the Company.
4.6 As soon as reasonably practicable following (g) shall procure that (i) the Backstop Deadline, Shares remain free and clear of any security interest save for the Information Agent shall calculate provisions of the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed first ranking pledge granted by the Club Loan Agent and Pledgor to ING Bank under the Notes Trustee orFirst Ranking Share Pledge Agreement (ii) that there are no limitations, in whether pursuant to the alternativeArticles or to any agreement, by to the Majority Backstop Parties transferability of the applicable Senior Claims as Pledged Assets or to the exercise of the Backstop Deadlinevoting rights attached to the Shares (iii) immediately following that the Backstop Deadline on the following basis Shares are not certificated and notify each Backstop Party (iv) that there is no cause for suspension of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable voting rights attached to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretionShares.
Appears in 1 contract
Samples: Second Ranking Share Pledge Agreement (Rogers Corp)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably The Manager undertakes with the Bank that throughout the Security Period (as such term is defined in the General Assignment dated 1 March 2006 (the “General Assignment”) executed by the Borrower in favour of each other Consenting Creditor that, subject the Bank):
4.1 the Manager will not agree or purport to agree to any amendment or variation of the Management Agreement without the prior written consent of the Bank;
4.2 the Manager will procure that any sub-manager appointed by it pursuant to the termsprovisions of the Management Agreement will, conditions and limitations set forth hereinon or before the date of such appointment, it enter into an undertaking in favour of the Bank in substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will comply with not, without the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided thatprior written consent of the Bank, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking take any action to preserve the validity, existence or priority of institute any of its rights and Claims (including seeking acceptance of proceedings or make or assert any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor claim on or in respect of the Club Loans and/or Notes Ship or its policies and contracts of insurance (which expression includes all entries of the Ship in a protection and indemnity or war risks association) which are from time to time during the Security Period (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that term is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation PlanGeneral Assignment) shall include all in place or taken out or entered into by or for the benefit of the parties referred Borrower (whether in the sole name of the Borrower or in the joint names of the Borrower and the Bank or otherwise) in respect of the Ship and her Earnings (as such term is defined below) or otherwise howsoever in connection with the Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the “Insurances”) or all moneys whatsoever from time to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything time due or payable to the contrary contained herein Borrower during the Security Period (as such term is defined in the General Assignment) arising out of the use or operation of the Ship including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship (the “Earnings”) or any other Claims such Consenting Creditor property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against such parties arising out of the Borrower or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings otherwise in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis Ship and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator its Earnings, Insurances and Requisition Compensation (as such term is defined in the Solicitation Plan), or any other party who would be authorized General Assignment) to act on behalf the claims of the Plan Debtors or their successor entities Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in connection with implementation respect of the Chapter 11 PlanBorrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
4.5 the Manager will discontinue any such action or proceedings or claim which may have been taken, instituted or made or asserted, promptly upon notice from the Court Supervised Arrangement or Bank to do so;
4.6 the Manager will promptly notify the Bank if at any Restructuring, shall be acceptable time the amount owed by the Borrower to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable Manager pursuant to the Creditor Plan Proponent unless Management Agreement (whether in respect of the Plan Administrator Manager’s remuneration or disbursements or otherwise) exceeds [US$100,000] or the equivalent in other currencies; and
4.7 the Manager will provide the Bank with such other party or parties, information concerning the Ship as the case Bank may be, have agreed from time to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretiontime reasonably require.
Appears in 1 contract
Samples: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably 3.1 Issuer undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided Joint Lead Managers that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses it will on or be prohibited from taking any action to preserve before the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under Closing Date execute the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)Agency Agreement;
(b) HSBC-HK may, without limitation, seek to take, refrain from taking it will bear and pay (i) any stamp or cause to be taken other duties or not taken any action it deems necessary taxes on or desirable in its sole discretion in connection with the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation issue and delivery of the Restructuring in Notes and the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate execution and delivery of this Agreement as to HSBC-HK without further obligation hereunder on and the part of HSBC-HKAgency Agreement (together the Agreements) and (ii) any value added tax payable in connection with the commission or other amounts payable or allowed under this Agreement and otherwise in connection with the transactions envisaged by this Agreement;
(c) in additionit will not, between the Consenting Creditors who are members date of this Agreement and the Ad Hoc Group agree to use reasonable efforts to seek Closing Date (both dates inclusive), without the prior approval of the Bankruptcy Court (Joint Lead Managers, make any announcement which may be could have a material adverse effect on the marketability of the Notes, unless the Issuer is required to make any such announcement under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a Chapter 11 Planregulatory agency having competent jurisdiction over the Issuer, in which case the Issuer shall use its best endeavours to notify and consult with the Joint Lead Managers in advance;
(d) it will deliver to CFG Peru taking all corporate governance actions consistent the Joint Lead Managers, without charge, on the date of this Agreement (or as soon as reasonably practicable thereafter), and from time to time, such number of copies of the Prospectus as the Joint Lead Managers may reasonably request, and will give to the Joint Lead Managers on the date hereof a copy of the Prospectus signed by a duly authorised officer of the Issuer;
(e) it will not make any amendment or supplement to the Prospectus without the prior consent of the Joint Lead Managers (such consent not to be unreasonably withheld or delayed), unless the Issuer is required to make any such amendment or supplement to the Prospectus under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a regulatory agency having competent jurisdiction over the Issuer, in which case the Issuer shall use its best endeavours to notify and consult with Peruvian the Joint Lead Managers in advance;
(f) so long as any of the Notes remains outstanding, the Issuer will furnish to ABN AMRO, and Singapore law to make:each other Joint Lead Manager who may so request in writing, copies of each document filed by the Issuer with the Commission de Surveillance du Secteur Financier (the CSSF), and copies of financial statements and other periodic reports that the Issuer may furnish generally to holders of its debt securities;
(g) it will use the net proceeds received by it from the issue of the Notes in the manner specified in the Prospectus;
(h) it will ensure that proceeds raised in connection with the issue of the Notes will not directly or indirectly be lent, contributed or otherwise made available to any person or entity (whether or not related to the Issuer) for the purpose of financing the activities of any person or for the benefit of any country currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and
(i) an Interim Distribution that is not less than US$75 million it will use all reasonable endeavours to procure the delivery of a certificate of approval by the CSSF to the Notes Trustee competent authority in The Netherlands and will promptly notify the Club Loan Agent in accordance with Joint Lead Managers following receipt by the Agreed Participation (without, for the avoidance Issuer of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines confirmation that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes certificate of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and hereinapproval has been so delivered.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably The Manager undertakes with the Bank that throughout the Security Period (as such term is defined in the General Assignment dated 20 November 2007 (the “General Assignment”) executed by the Borrower in favour of each other Consenting Creditor that, subject the Bank):
4.1 the Manager will not agree or purport to agree to any amendment or variation of the Management Agreement without the prior written consent of the Bank;
4.2 the Manager will procure that any sub-manager appointed by it pursuant to the termsprovisions of the Management Agreement will, conditions and limitations set forth hereinon or before the date of such appointment, it enter into an undertaking in favour of the Bank in substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will comply with not, without the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided thatprior written consent of the Bank, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking take any action to preserve the validity, existence or priority of institute any of its rights and Claims (including seeking acceptance of proceedings or make or assert any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor claim on or in respect of the Club Loans and/or Notes Ship or its policies and contracts of insurance (which expression includes all entries of the Ship in a protection and indemnity or war risks association) which are from time to time during the Security Period (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that term is not less than US$75 million to the Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation PlanGeneral Assignment) shall include all in place or taken out or entered into by or for the benefit of the parties referred Borrower (whether in the sole name of the Borrower or in the joint names of the Borrower and the Bank or otherwise) in respect of the Ship and her Earnings (as such term is defined below) or otherwise howsoever in connection with the Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the “Insurances”) or all moneys whatsoever from time to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything time due or payable to the contrary contained herein Borrower during the Security Period (as such term is defined in the General Assignment) arising out of the use or operation of the Ship including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship (the “Earnings”) or any other Claims such Consenting Creditor property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against such parties arising out of the Borrower or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings otherwise in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis Ship and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator its Earnings, Insurances and Requisition Compensation (as such term is defined in the Solicitation Plan), or any other party who would be authorized General Assignment) to act on behalf the claims of the Plan Debtors or their successor entities Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in connection with implementation respect of the Chapter 11 PlanBorrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
4.5 the Manager will discontinue any such action or proceedings or claim which may have been taken, instituted or made or asserted, promptly upon notice from the Court Supervised Arrangement or Bank to do so;
4.6 the Manager will promptly notify the Bank if at any Restructuring, shall be acceptable time the amount owed by the Borrower to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable Manager pursuant to the Creditor Plan Proponent unless Management Agreement (whether in respect of the Plan Administrator Manager’s remuneration or disbursements or otherwise) exceeds US$100,000 or the equivalent in other currencies; and
4.7 the Manager will provide the Bank with such other party or parties, information concerning the Ship as the case Bank may be, have agreed from time to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretiontime reasonably require.
Appears in 1 contract
Samples: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably 3.1 The Issuer undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided Joint Lead Managers that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor shall be required to waive any Defenses it will on or be prohibited from taking any action to preserve before the validity, existence or priority of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under Closing Date execute the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)First Supplemental Agency Agreement;
(b) HSBC-HK may, without limitation, seek to take, refrain from taking it will bear and pay (i) any stamp or cause to be taken other duties or not taken any action it deems necessary taxes on or desirable in its sole discretion in connection with the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation issue and delivery of the Restructuring in Notes and the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate execution and delivery of this Agreement as to HSBC-HK without further obligation hereunder on and the part of HSBC-HKFirst Supplemental Agency Agreement (together the Agreements) and (ii) any value added tax payable in connection with the commission or other amounts payable or allowed under this Agreement and otherwise in connection with the transactions envisaged by this Agreement;
(c) in additionit will not, between the Consenting Creditors who are members date of this Agreement and the Ad Hoc Group agree to use reasonable efforts to seek Closing Date (both dates inclusive), without the prior approval of the Bankruptcy Court (Joint Lead Managers, make any announcement which may be could have a material adverse effect on the marketability of the Notes, unless the Issuer is required to make any such announcement under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a Chapter 11 Planregulatory agency having competent jurisdiction over the Issuer, in which case the Issuer shall use its best endeavours to notify and consult with the Joint Lead Managers in advance;
(d) it will deliver to CFG Peru taking all corporate governance actions consistent the Joint Lead Managers, without charge, on the date of this Agreement (or as soon as reasonably practicable thereafter), and from time to time, such number of copies of the Prospectus as the Joint Lead Managers may reasonably request, and will give to the Joint Lead Managers on the date hereof a copy of the Prospectus signed by a duly authorised officer of the Issuer;
(e) it will not make any amendment or supplement to the Prospectus without the prior consent of the Joint Lead Managers (such consent not to be unreasonably withheld or delayed), unless the Issuer is required to make any such amendment or supplement to the Prospectus under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a regulatory agency having competent jurisdiction over the Issuer, in which case the Issuer shall use its best endeavours to notify and consult with Peruvian the Joint Lead Managers in advance;
(f) so long as any of the Notes remains outstanding, the Issuer will furnish to ML, and Singapore law to make:each other Joint Lead Manager who may so request in writing, copies of each document filed by the Issuer with the Commission de Surveillance du Secteur Financier (the CSSF) or Euronext Amsterdam by NYSE Euronext (Euronext Amsterdam), and copies of financial statements and other periodic reports that the Issuer may furnish generally to holders of its debt securities;
(g) it will use the net proceeds received by it from the issue of the Notes in the manner specified in the Prospectus;
(h) it will ensure that proceeds raised in connection with the issue of the Notes will not directly or indirectly be lent, contributed or otherwise made available to any person or entity (whether or not related to the Issuer) for the purpose of financing the activities of any person or for the benefit of any country currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and
(i) an Interim Distribution that is not less than US$75 million it will use all reasonable endeavours to procure the delivery of a certificate of approval by the CSSF to the Notes Trustee competent authority in The Netherlands and will promptly notify the Club Loan Agent in accordance with Joint Lead Managers following receipt by the Agreed Participation (without, for the avoidance Issuer of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines confirmation that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes certificate of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and hereinapproval has been so delivered.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject to the terms, conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:
(a) no Consenting Creditor The Pledgor shall be required to waive any Defenses or be prohibited from taking any action to preserve procure that the validity, existence or priority Company shall forthwith upon the execution hereof provide the Pledgee with a certificate in the form of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);Schedule 2.
(b) HSBCThe Pledgor shall procure that no executory seizure (saisie execution/uitvoerend beslag) is made on the Shares or any other Pledged Assets, and that any conservatory seizure (saisie conservatoire/bewarend beslag) thereon is lifted within 60 days of it first being made.
(c) The Pledgor shall co-HK may, without limitation, seek to take, refrain from taking operate with the Pledgee and sign or cause to be taken or signed all such further documents and take all such further action as the Pledgee may from time to time reasonably request to perfect and protect the pledge of the Pledged Assets under Belgian law and to carry out the provisions and purposes of this Agreement. The Pledgee shall not taken be obligated to request any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate under this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
paragraph (c) in addition, except upon written instructions from the Consenting Creditors who are members Requisite Noteholders.
(d) The Pledgor shall not (i) dispose of the Ad Hoc Group agree Shares or any other Pledged Assets except in accordance with the provisions of this Agreement or the Terms and Conditions of Notes, (ii) create any other Lien in respect of the Pledged Assets (irrespective of whether ranking behind the pledge created hereby), nor (iii) permit the existence or the subsistence of any such Lien, except Permitted Liens imposed by mandatory operation of law.
(e) The Pledgor shall not take any steps, including without limitation to the exercise of any right it has under any agreement pertaining to or in relation with the Pledged Assets, which may jeopardise or adversely affect the security interest constituted in this Agreement, except as permitted in the Terms and Conditions of Notes.
(f) The Pledgor shall use reasonable its best efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
ensure that (i) an Interim Distribution extraordinary general meeting of partners of the Company will be held in order to amend article 9 of the articles of association of the Company in such a way that is not less than US$75 million to the Notes Trustee right of first refusal (voorkeurrecht/droit de preference) and the Club Loan Agent required approval by the board of directors (goedkeuringsclausule/clause d'agrement) as presently set forth in accordance with said article 9 of the Agreed Participation (without, for articles of association do not apply to an enforcement of the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions pledge under this Agreement and that have not occurred at that time) to be applied in accordance with the Existing Indenture and the Club Loan Agreement, respectively; and
(ii) the SFR Distribution this extraordinary general meeting of partners shall be held as soon as practically possible after Solutia Inc has given its consent to the Notes Trustee to be applied above mentioned amendment or after the date at which this consent is no longer required in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all view of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be releasedabove mentioned amendment.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.
Appears in 1 contract
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in favour of each other Consenting Creditor that, subject So long as the Bond is outstanding and to the termsextent permitted by applicable law, conditions and limitations set forth herein, it will comply unless with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreement:prior written approval of the Bondholders:-
(a) no Consenting Creditor the Company shall be required to waive any Defenses or be prohibited keep available for issue, free from taking any action to preserve the validitypre-emptive rights, existence or priority of any out of its authorised but unissued capital sufficient Shares to satisfy in full the Conversion Rights at the Conversion Price from time to time and all other rights for the time being outstanding of subscription for and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)conversion into Shares;
(b) HSBC-HK may, without limitation, seek the Company shall not in any way modify the rights attached to take, refrain from taking the Shares as a class or cause to be taken or not taken attach any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HKspecial restrictions thereto;
(c) the Company shall not issue or pay up any securities by way of capitalisation of profits or reserves other than (i) by the issue of fully paid Shares to holders of its Shares; or (ii) as mentioned in additionCondition 6(c)(iii); or (iii) by the issue of Shares in lieu of a cash dividend in the manner referred to in Condition 6(c)(iv) ;
(d) the Company shall not create or permit to be in issue any Equity Share Capital (as defined below) other than Shares, provided that nothing in this Condition 10(d) shall prevent (i) any consolidation or sub-division of the Shares; or (ii) the issue of Equity Share Capital which does not participate in dividend before a certain date or in respect of a certain financial period but is pari passu in all other respects with the Shares; or (iii) the issue of Equity Share Capital to officers or employees of the Company or any of its subsidiaries pursuant to an employee or executive share scheme;
(e) the Company shall procure that (i) no securities issued by the Company shall be converted into Shares or exchanged for Shares except in accordance with the terms of issue thereof, (ii) no securities issued by the Company without rights to convert into Shares or to be exchanged for Shares shall subsequently be granted such rights and (iii) at no time shall there be in issue Shares of differing nominal values;
(f) the Company shall not make any issue, grant or distribution or take any other action if the effect thereof would be that on the exercise of the Conversion Rights it would but for Condition 6(i) be required to issue Shares at a discount to their nominal value;
(g) if an offer is made to the holders of Shares (or such holders other than the offeror and/or any company controlled by the offeror and/or persons acting in concert with the offeror) to acquire all or a proportion of the Shares, the Consenting Creditors who are members Company shall forthwith give notice of such offer to the Bondholder(s) and use all its best endeavours to procure that a similar offer is extended in respect of the Ad Hoc Group agree to use reasonable efforts to seek the approval Bond(s) or in respect of any Shares issued on conversion of the Bankruptcy Court Bond(s) during the period of the offer;
(which may be pursuant h) the Company shall not make any distribution in specie to a Chapter 11 Plan) holders of Shares unless the Bondholder is entitled to CFG Peru taking all corporate governance actions consistent the Specie Distribution Right in accordance with Peruvian and Singapore law to make:Condition 7;
(i) an Interim Distribution that is not less the Company shall not, subject as hereinafter provided, make any reduction or redemption of share capital, share premium account or capital redemption reserve involving the repayment of money to shareholders (other than US$75 million to shareholders having the right on a winding-up to a return of capital in priority to the Notes Trustee and holders of Shares) or reduce any uncalled liability in respect thereof unless, in any such case, the Club Loan Agent same gives rise (or would, but for the provisions of Conditions 6(e) or 6(g) give rise) to an adjustment of the Conversion Price in accordance with Condition 6;
(j) the Agreed Participation Company shall use its best endeavours (without, a) to maintain a listing for all the issued Shares on the Stock Exchange or on such other equivalent internationally recognised stock exchange (a “recognised stock exchange”) as the Company may from time to time determine (b) to obtain and maintain a listing on the Stock Exchange (or a recognised stock exchange) for all the Shares issued on the exercise of the Conversion Rights attaching to the Bond and (c) to obtain a listing for all the Shares issued on the exercise of the Conversion Rights attaching to the Bond on any other stock exchange on which any of the Shares are for the avoidance time being listed and will forthwith give notice to the holder of doubt, any Indebtedness being reduced on account of any Interim Distributions or SFR Distributions that have not occurred at that time) to be applied the Bond in accordance with Condition 17 of the Existing Indenture listing or delisting of the Shares by any such stock exchange;
(k) as soon as possible and in any event not later than 3 days after the announcement of the terms of any issue referred to in Condition 6 give notice to the Bondholder advising it of the date on which the relevant adjustment of the Conversion Price is likely to become effective and of the effect of exercising their Conversion Rights pending such date;
(l) the Company shall comply with and procure the compliance of all conditions imposed by the Stock Exchange or by any other competent authority (in Hong Kong or elsewhere) for approval of the issue of the Bond or for the listing of and permission to deal in the Shares issued or to be issued on the exercise of the Conversion Rights and to ensure the continued compliance thereof;
(m) the Company shall not make any disposal of its assets which would constitute a major transaction for the purpose of Chapter 14 of the Rules Governing the Listing of Securities on the Stock Exchange (and any amendment thereto);
(n) the Company shall not issue Shares for the acquisition of any asset at a total Effective Consideration per Share which is less than 95 per cent. of the market price at the date of the announcement of the terms of such issue, and for the purpose of this Condition 10(n) “total Effective Consideration” shall be the aggregate consideration credited as being paid for such Shares by the Company on acquisition of the relevant asset without any deduction of any commissions, discounts or expenses paid, allowed or incurred in connection with the issue thereof, and the Club Loan Agreement“total Effective Consideration per Share” shall be the total Effective Consideration divided by the number of Shares issued as aforesaid;
(o) The Company shall ensure that all Shares issued upon conversion of the Bond will be duly and validly issued fully paid and registered;
(p) The Company shall, respectivelywithin a reasonable time upon a request by the Bondholder, provide to the Bondholder such published financial and other published information relating to the Company, its businesses and operations as the Bondholder may reasonably specify or require from to time to time; and
(iiq) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement The Company shall require not enter into any Consenting Creditor to takedeed, agreement, assignment, instrument or omit to take, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would documents whatsoever which may result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes breach of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of (x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by Bond. For the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any and all expenditures for counsel or other advisors), in each case, which shall be satisfactory to the Creditor Plan Proponents, in their sole discretion.purpose of this Condition 10,
Appears in 1 contract
Samples: Sale and Purchase Agreement (Nam Tai Electronics Inc)
Undertakings. 4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably The custodian's undertakings The Custodian undertakes in favour of each other Consenting Creditor that, subject to that at all times during the terms, conditions and limitations set forth herein, Term it will comply with the Consenting Creditors’ undertakings as set forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, notwithstanding any other provision in this Agreementwill:
(a) no Consenting Creditor shall be required (notice of default) give notice in writing to waive any Defenses or be prohibited from taking any action to preserve the validity, existence or priority Trustee and each Designated Rating Agency of it becoming aware of the occurrence of any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be)Custodial Transfer Event;
(b) HSBC-HK may(compliance with law)
(i) maintain in effect all qualifications, without limitationconsents, seek licenses, permits, approvals, exemptions, filings and registrations as may be required under any applicable law in order properly to take, refrain from taking perform or cause comply with its obligations under this Agreement;
(ii) comply with all Laws in connection with the provision of the Custodial Services where failure to be taken do so would have a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in connection with the provision of the Custodial Services so that the Trustee does not personally or not taken any action it deems necessary or desirable in its sole discretion in the Adversary Proceedings, provided that if HSBC-HK takes any such action that adversely affects implementation capacity as trustee of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as Trust become liable to HSBC-HK without further obligation hereunder on the part of HSBC-HK;pay any Civil Penalty Payments.
(c) (Material Default) if a Material Default occurs in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant respect to a Chapter 11 PlanReceivable, take all reasonable action to assist the Servicer and the Trustee to enforce the relevant Receivable and the Receivable Rights;
(d) to CFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:(Insurance Policies)
(i) an Interim Distribution that is not less than US$75 million to the Notes Trustee and the Club Loan Agent act in accordance with the Agreed Participation (without, for the avoidance of doubt, any Indebtedness being reduced on account terms of any Interim Distributions or SFR Distributions that have not occurred at that time) Mortgage Insurance Policies to be applied in accordance with the Existing Indenture and extent applicable to the Club Loan Agreement, respectivelyCustodian; and
(ii) the SFR Distribution to the Notes Trustee to be applied in accordance with the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, not do or omit to takedo anything which, any action if such Consenting Creditor (in its sole and absolute discretion) determines that such action (or omission):
(a) would be contrary to any applicable law or regulation or might affect directly or indirectly its reputation; or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all of the parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out omission of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) US$150,000,000.
4.7 The Plan Administrator (as defined in the Solicitation Plan), or any other party who would be authorized to act on behalf of the Plan Debtors or their successor entities in connection with implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Restructuring, shall be acceptable to the Creditor Plan Proponents (as defined in the Solicitation Plan), and the Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or partieswhich, as the case may be, have agreed could be reasonably expected to prejudicially affect or limit its rights or the rights of the Trustee or the Servicer under or in respect of a Mortgage Insurance Policy to the terms extent those rights relate to a Receivable and the Receivable Rights;
(e) (notification) notify the Trustee, the Manager and the Servicer of any event which it reasonably believes is likely to have a Material Adverse Effect promptly after becoming aware of such event;
(xf) a budget or budgets for the Plan Debtors (which shall include all disbursements expected provide information and access on request) as soon as reasonably practicable after being requested so to be made do, provide information reasonably requested by the Plan DebtorsTrustee, the Manager or the Servicer, with respect to all matters relating to the Custodial Services and upon reasonable notice and at reasonable times permit the Trustee, the -------------------------------------------------------------------------------- Page (9) Custodian Agreement Xxxxx Xxxxx & Xxxxxxx -------------------------------------------------------------------------------- Manager or the Servicer to enter the Premises and inspect the Data Base in relation to each Relevant Trust and the Relevant Documents;
(g) (Report Record of Movements) provide the Trustee and the Manager on the last Business Day of each week a copy of an extract from the Record of Movements applicable to that week's movements of Relevant Documents;
(h) (comply with other obligations) comply with all its obligations under any Transaction Document to which it is a party;
(i) (pay taxes) subject to receiving payment from, or being reimbursed by, the relevant Obligor or being indemnified by the Trustee, pay all Taxes that relate to the Custodial Services (other than any Tax on, or measured by reference to, the income of a Trust or the Custodian) or where such Taxes are incurred due to the default or breach of duty by the Custodian, pay those Taxes itself or ensure those Taxes are paid;
(j) (not claim) not claim any Security Interest over any Asset;
(k) (comply with Supplementary Terms Notice) comply with any undertaking specified as an additional Custodian undertaking in a relevant Supplementary Terms Notice, including, without limitation, providing the Manager with any information referred to in that Supplementary Terms Notice;
(l) (insurances) ensure that the Premises are appropriately insured for fire and public risks, and that it has appropriate directors and officers insurance; and
(m) (Data Base) maintain the Data Base collected, held or stored by it in relation to each Relevant Trust and each Relevant Document and, subject to all applicable laws, provide the Trustee with access to the Data Base upon reasonable request and during normal business hours.
4.2 Material adverse effect
(a) In performing the Custodial Services the Custodian shall have regard to whether expressly provided for under what it does, or does not do, will have any Material Adverse Effect.
(b) The Custodian may ask the Restructuring Documents Trustee or otherwisethe Manager if any action or inaction on its part is reasonably likely to, for or will, have a Material Adverse Effect.
(c) The Custodian may rely upon any statement by the periods prior Trustee or the Manager that any action or inaction by the Custodian is reasonably likely to, or will, have a Material Adverse Effect.
(d) Subject to and after the Restructuring Effective Dateparagraph (a), the Custodian shall not be liable for a breach of this Agreement, or (y) other arrangements governing the terms and conditions be liable under which disbursements may be made any indemnity, in relation to any action or inaction on its part, where it has been notified by the Plan AdministratorTrustee or the Manager that the action or inaction is not reasonably likely to, such other parties and/or or will not have a Material Adverse Effect, unless the Plan Debtors (including any and all expenditures for counsel notification was caused by the fraud, negligence or other advisors), in each case, which shall be satisfactory to wilful default of the Creditor Plan Proponents, in their sole discretionCustodian.
Appears in 1 contract
