Undertakings. 57.1 Except to the extent the Lender otherwise consents in writing, each of the Borrower and the Guarantor undertakes as follows: (a) to notify the Lender as soon as it becomes aware of any Event of Default or of any circumstance that may give rise to an Event of Default; (b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is given; (c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender; (d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event; (e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes; (f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust; (g) to fully comply with all laws binding on it; (h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and (i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal. 57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows: (a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and (b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks. 57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows: (a) to comply fully with its obligations under the Trust Deed and at law; (b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and (c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement. 57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 6 contracts
Samples: Margin Loan Revised Terms and Conditions, Margin Loan Revised Terms and Conditions, Margin Loan Revised Terms and Conditions
Undertakings. 57.1 Except to the extent the Lender otherwise consents in writingThe Trust agrees with you, each of the Borrower and the Guarantor undertakes as followsfor your benefit, that:
(a) to notify The Trust shall sell Shares of the Lender as soon Funds so long as it becomes aware has such Shares available for sale and shall cause the transfer agent (the “Transfer Agent”) to record on its books the ownership of such Shares registered in such names and amounts as you have requested in writing or 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 register Shares of any Event Fund sold by you on behalf of Default or of any circumstance that may give rise to an Event of Default;the Trust.
(b) Subject to notify Section 7 of this Agreement, the Lender Trust will furnish to you as many conformed copies of any changes to its contact details the Registration Statements including exhibits thereto, on each Effective Date, as you may reasonably request for yourself and acknowledge that any Notice or Margin Call will be sent for delivery to the contact details held Selling Agents and, so long as delivery of a Prospectus or SAI by you or any Selling Agent may be required by law, the Lender at number of copies of each Prospectus and each SAI as you may reasonably request for yourself and for delivery to the time the Margin Call or Notice is given;Selling Agents.
(c) To the extent required by applicable state law, the Trust will use its best efforts to notify arrange for the Lender as soon as it becomes aware qualification of any change in its Authorised Personsan appropriate number of the Shares of the Funds for sale under the laws of such of the 50 xxxxxx xx xxx Xxxxxx Xxxxxx, giving the Lender specimen signatures District of any new Authorised Person appointedColumbia, the Commonwealth of Puerto Rico, the Territory of Guam, and if such other jurisdiction as you and the Lender asksTrust may approve, evidence 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 authority of any Authorised Person that is satisfactory to the Lender;Trust in connection with such qualifications.
(d) The Trust shall keep you informed in all material respects with respect to notify its affairs and, subject to Section 7 of this Agreement, the Lender Trust, if so requested, will furnish to you, as soon as it becomes aware they are available (with sufficient copies for the Selling Agents), copies of any circumstance that may cause a Material Adverse Event;
(e) if it is an individualall reports, communications and financial statements sent by the Trust to its shareholders or filed by, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writingbehalf of, the Borrower or Trust with the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the AgreementCommission.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 4 contracts
Samples: Distribution Agreement (Hatteras Alternative Mutual Funds Trust), Distribution Agreement (Hatteras Alternative Mutual Funds Trust), Distribution Agreement (Hatteras Alternative Mutual Funds Trust)
Undertakings. 57.1 Except to the extent the Lender otherwise consents in writingThe Trust agrees with you, each of the Borrower and the Guarantor undertakes as follows:for your benefit, that: ------------
(a) to notify The Trust shall sell Shares of the Lender as soon Funds so long as it becomes aware has such Shares available for sale and shall cause the transfer agent (the "Transfer Agent") -------------- to record on its books the ownership of such Shares registered in such names and amounts as you have requested in writing or 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 register Shares of any Event Fund sold by you on behalf of Default the Trust. Prior to the termination of this Agreement, the Trust will not file any amendment to any Registration Statement or amendment or supplement to any Prospectus or SAI (whether pursuant to the 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 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 circumstance that may give rise such amendment or supplement to an Event of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent you. Subject to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writingforegoing sentence, if the Borrower filing of any Prospectus or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust)SAI, except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be, 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 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 (i) undertakes 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 addition to Clauses 57.1 and 57.2any of the foregoing, (iv) in its capacity as trustee of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust and in its own right as follows:
(a) to comply fully with its obligations 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 Deed and at law;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) not do anything that 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 cause include any untrue statement of a material fact or enable its removalomit to state any material fact necessary to make the statements therein, nor retire or cease to act, as trustee in the light of the Trust; andcircumstances 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 exercise the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its right shareholders and, subject to Section 8 of indemnity from this Agreement, to you (with sufficient copies for the trust fund 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 beneficiaries 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 it needs toso 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 order connection with the filing of any post-effective amendment to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from any Registration Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund" in any Prospectus or SAI that is deemed material by you, the Trust, if so requested, shall furnish to you an opinion of counsel for the Trust, dated the date of such post-effective amendment, to the effect of paragraph 2 (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 furnish to you an opinion of counsel for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in any Prospectus or SAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the 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 until and the Agreement is terminatedFund 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 with respect to an amendment of a Registration Statement which first includes certified financial statements for the 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 date on which the Trust, 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 figures 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 conformity 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 4 contracts
Samples: Distribution Agreement (Goldman Sachs Trust), Distribution Agreement (Goldman Sachs Trust), Distribution Agreement (Goldman Sachs Trust)
Undertakings. 57.1 Except to The Assignor hereby undertakes and agrees with the extent Security Trustee for the Lender benefit of the Finance Parties throughout the continuance of this Deed and so long as the Secured Obligations or any part thereof remains owing that, unless the Security Trustee otherwise consents agrees in writing, each of the Borrower and the Guarantor undertakes as follows:it will:-
(a) to notify perform all its obligations under the Lender as soon as it becomes aware of any Event of Default or of any circumstance that may give rise to an Event of DefaultAssigned Agreement;
(b) to notify the Lender Security Trustee of any changes to its contact details and acknowledge that breach by any Notice or Margin Call will be sent party to the contact details held by the Lender at the time the Margin Call or Notice is givenAssigned Agreement;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory give to the LenderSecurity Trustee upon receipt copies of all notices, requests and other documents sent or received with respect to the Assigned Agreement;
(d) give to notify the Lender Security Trustee such information regarding the Collateral as soon as it becomes aware of any circumstance that may cause a Material Adverse Eventthe Security Trustee shall reasonably require;
(e) if it is an individual, do or individual entering into permit to be done every act or thing which the Agreement Security Trustee may require to be done for the purpose of enforcing the rights of the Security Trustee hereunder and will allow its name to be used as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly and when required for business or investment purposesthat [Security Assignment] purpose;
(f) unless it is entering into not amend or agree to amend the Assigned Agreement in or waive any of its rights thereunder without the capacity prior written consent of trustee of a trust, the Security Trustee (such consent not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trustbe unreasonably withheld);
(g) not create or attempt or agree to fully comply create or permit to exist any Security Interest over all or any part of the Collateral or any interest therein or otherwise assign, deal with or dispose of all laws binding on itor any part of the Collateral (except under or pursuant to this Deed);
(h) not sell or agree to supply to sell, transfer or assign, any part of the Lender when requested to do so by the Lender such financial accounts Collateral;
(i) not grant in favour of any other person any interest in or any option or other information relating to it (or any trust rights in respect of which it is entering into any of the Agreement as trustee) as the Lender may from time to time requestCollateral; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(bj) not do anything that would or cause or enable its removalpermit to be done anything which may in any way depreciate, nor retire jeopardise or cease to act, as trustee otherwise prejudice the value of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the AgreementSecurity Trustee's security hereunder.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 2 contracts
Samples: Security Assignment (China Netcom Group CORP (Hong Kong) LTD), Security Assignment (China Netcom Group CORP (Hong Kong) LTD)
Undertakings. 57.1 Except to the extent the Lender otherwise consents in writingThe Trust agrees with you, each of the Borrower and the Guarantor undertakes as follows:for your benefit, that: ------------
(a) to notify The Trust shall sell Shares of the Lender as soon Funds so long as it becomes aware has such Shares available for sale and shall cause the transfer agent (the "Transfer Agent") -------------- to record on its books the ownership of such Shares registered in such names and amounts as you have requested in writing or 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 register Shares of any Event Fund sold by you on behalf of Default the Trust. Prior to the termination of this Agreement, the Trust will not file any amendment to any Registration Statement or amendment or supplement to any Prospectus or SAI (whether pursuant to the 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 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 circumstance that may give rise such amendment or supplement to an Event of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent you. Subject to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writingforegoing sentence, if the Borrower filing of any Prospectus or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust)SAI, except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be, 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 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 (i) undertakes 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 addition to Clauses 57.1 and 57.2any of the foregoing, (iv) in its capacity as trustee of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust and in its own right as follows:
(a) to comply fully with its obligations 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 Deed and at law;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) not do anything that 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 cause include any untrue statement of a material fact or enable its removalomit to state any material fact necessary to make the statements therein, nor retire or cease to act, as trustee in the light of the Trust; andcircumstances 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 exercise the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its right shareholders and, subject to Section 8 of indemnity from this Agreement, to you (with sufficient copies for the trust fund 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 beneficiaries 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 it needs toso 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 order connection with the filing of any post-effective amendment to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from any Registration Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund" in any Prospectus or SAI that is deemed material by you, the Trust, if so requested, shall furnish to you an opinion of counsel for the Trust, dated the date of such post- effective amendment, to the effect of paragraph 2 (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 furnish to you an opinion of counsel for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in any Prospectus or SAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the 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 until and the Agreement is terminatedFund 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 with respect to an amendment of a Registration Statement which first includes certified financial statements for the 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 date on which the Trust, 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 figures 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 conformity 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 Trust), Distribution Agreement (Goldman Sachs Trust)
Undertakings. 57.1 Except to The Mortgagor hereby undertakes and agrees with the extent Security Trustee, for the Lender benefit of the Finance Parties, throughout the continuance of this Deed and so long as the Secured Obligations or any part thereof remains owing that, unless the Security Trustee otherwise consents agrees in writing, each of the Borrower and the Guarantor undertakes as follows:it will:-
(a) not create or attempt or agree to notify the Lender as soon as it becomes aware of create or permit to exist any Event of Default Security Interest over all or of any circumstance that may give rise to an Event of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as Collateral or any interest therein or otherwise sell, transfer, assign, deal with or dispose of all or any part of the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested Collateral or attempt or agree to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except same (except under or pursuant to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trustthis Deed), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause grant or enable its removal, nor retire attempt or cease agree to act, as trustee grant in favour of any other person any interest in or any option or other rights in respect of any of the Trust; andCollateral;
(c) to exercise ensure that no person holding any of the Collateral as its right Nominee for the time being does any of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking acts prohibited in this Deed;
(d) subject to Clause 57 continues from the date 7.6(b) of the CNC HK Guarantee at all times remain the sole, direct, absolute, legal and beneficial owner of the Collateral;
(e) subject to Clause 7.6(b) of the CNC HK Guarantee procure that no material amendment or supplement is made to the constitutional documents of the Borrower other than pursuant to Clause 16.15 of the Facility Agreement until without the Agreement is terminatedprior written consent of the Security Trustee;
(f) immediately upon the appointment of any new director of the Borrower, deposit or procure that there be deposited with the Security Trustee, the 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 Borrower are altered;
(h) give to the Security Trustee upon receipt copies of all notices, requests and other documents sent or received with respect to the Collateral;
(i) give to the Security Trustee such information regarding the Collateral as the Security Trustee shall reasonably require;
(j) do or permit to be done every act or thing which the Security Trustee may from time to time require for the purpose of enforcing the rights of the Security Trustee hereunder and will allow its name to be used as and when required for that purpose;
(k) not do or cause or permit to be done anything which may in any way depreciate, jeopardise or otherwise prejudice the value of the security constituted hereunder;
(l) procure that the Borrower will forthwith on presentation by the Security Trustee or its nominee following the security constituted by this Deed becoming enforceable, duly register all transfers of the Collateral; and [Mortgage of Shares]
(m) if the Mortgagor shall acquire any such other stocks or shares as referred to in the definition of Collateral, it shall forthwith deliver or procure that there be delivered to the Security Trustee the certificates in respect thereof together with instruments of transfer in respect thereof duly executed in blank to enable the same to be registered in the name of the Security Trustee or its nominee following the security constituted by this Deed becoming enforceable.
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. 57.1 Except 8.1 The Issuer undertakes to the Seller that it will at all times (or will direct the relevant Servicer at all times to) use reasonable endeavours to administer and enforce (and exercise its powers and rights and perform its obligations under) the Loans comprised in the Portfolio and their Related Security in accordance with the policies set out at Schedule 11 (Seller's Policies) to this Agreement (subject to such changes made by the Seller prior to transfer of legal title to the Loans in accordance with Clause 7 (Perfection of the Sale) in accordance with the standard of a Reasonable, Prudent Mortgage Lender).
8.2 The Seller and the Issuer undertake to each other and to the Security Trustee that if and to the extent the Lender otherwise consents in writing, each of the Borrower and the Guarantor undertakes as followsthat any determination shall be made by any court or other competent authority or any ombudsman or regulator that:
(a) any term which relates to notify the Lender as soon as it becomes aware recovery of any Event of Default or of any circumstance that may give rise interest under the Standard Documentation applicable to an Event of Default;a Loan and its Related Security is unfair; or
(b) the Standard Variable Rate or any other discretionary interest rate or margin payable under any Loan (subject to notify any applicable caps, discounts and fixed rates) may not be set by any successors or assigns of the Lender of any changes to its contact details and acknowledge that any Notice Seller or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is given;those deriving title from it; or
(c) there has been any breach of or non-observance or non-compliance with any obligation, undertaking, covenant or condition on the part of the Seller relating to notify the Lender interest payable by or applicable to a Borrower under any Loan, then, subject to the receipt by the Security Trustee of a certificate signed by two authorised signatories of the Servicer stating that such a determination has been made under paragraph (a), (b), or (c) above (which the Security Trustee shall be entitled to accept as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, sufficient evidence of the authority satisfaction of any Authorised Person that is satisfactory the conditions precedent set out above, in which event it shall be conclusive and binding on all Secured Creditors), the Issuer will serve upon the Seller a notice in the form of the Loan Repurchase Notice substantially in the form set out in Schedule 6 (Loan Repurchase Notice) requiring the Seller to repurchase the Lender;
relevant Loan and all other Loans under the relevant Mortgage Account and its Related Security in accordance with Clause 9.9 (d) to notify but in the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee case of a trustdetermination in respect of paragraph (b) above, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets only if at any time forming part on or after such determination, the Standard Variable Rate of the Secured Portfolio Seller (as applicable) or other discretionary interest rate or margin shall be below or shall fall below the trustee standard variable rate of any trust;interest set by such successors or assigns or those deriving title from them).
(g) to fully comply with all laws binding on it;
(h) to supply 8.3 The Seller undertakes to the Lender when requested to do so Issuer and the Security Trustee that (a) if its or (where the Seller does not have an independent rating) YBS's long-term, unsecured, unguaranteed and unsubordinated debt obligation rating falls below Baa3 by Moody's or the Lender such financial accounts long-term issuer default rating of the Seller or other information relating to it (where the Seller does not have an independent rating) YBS falls below BBB- from Fitch (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure such other lower rating which is consistent with the then current rating methodology of the relevant Rating Agency or (ii) such other lower rating that the accounts and information provided Cash Manager certifies in writing to the Lender under Clause 57.1(h): i comply with current accounting practice except to Note Trustee and the extent disclosed in them and with all applicable laws; and ii give a true and fair view Security Trustee would have an adverse effect on the ratings of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.Class A Notes or
Appears in 2 contracts
Undertakings. 57.1 Except to the extent the Lender otherwise consents in writingThe Trust agrees with you, each of the Borrower and the Guarantor undertakes as follows:for your benefit, that: ------------
(a) to notify The Trust shall sell Shares of the Lender as soon Funds so long as it becomes aware has such Shares available for sale and shall cause the transfer agent (the "Transfer -------- Agent") to record on its books the ownership of such Shares registered ----- in such names and amounts as you have requested in writing or 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 register Shares of any Event Fund sold by you on behalf of Default the Trust. Prior to the termination of this Agreement, the Trust will not file any amendment to any Registration Statement or amendment or supplement to any Prospectus or SAI (whether pursuant to the 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 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 circumstance that may give rise such amendment or supplement to an Event of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent you. Subject to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writingforegoing sentence, if the Borrower filing of any Prospectus or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust)SAI, except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be, 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 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 (i) undertakes 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 addition to Clauses 57.1 and 57.2any of the foregoing, (iv) in its capacity as trustee of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust and in its own right as follows:
(a) to comply fully with its obligations 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 Deed and at law;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) not do anything that 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 cause include any untrue statement of a material fact or enable its removalomit to state any material fact necessary to make the statements therein, nor retire or cease to act, as trustee in the light of the Trust; andcircumstances 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 exercise the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its right shareholders and, subject to Section 8 of indemnity from this Agreement, to you (with sufficient copies for the trust fund 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 beneficiaries 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 it needs toso 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 order connection with the filing of any post-effective amendment to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from any Registration Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund" in any Prospectus or SAI that is deemed material by you, the Trust, if so requested, shall furnish to you an opinion of counsel for the Trust, dated the date of such post-effective amendment, to the effect of paragraph 2 (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 furnish to you an opinion of counsel for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in any Prospectus or SAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the 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 until and the Agreement is terminatedFund 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 with respect to an amendment of a Registration Statement which first includes certified financial statements for the 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 date on which the Trust, 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 figures 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 conformity 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 Trust), Distribution Agreement (Goldman Sachs Trust)
Undertakings. 57.1 Except to the extent the Lender otherwise consents in writingThe Trust agrees with you, each of the Borrower and the Guarantor undertakes as follows:for your benefit, that: ------------
(a) to notify The Trust shall sell Shares of the Lender as soon Funds so long as it becomes aware has such Shares available for sale and shall cause the transfer agent (the "Transfer Agent") -------------- to record on its books the ownership of such Shares registered in such names and amounts as you have requested in writing or 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 register Shares of any Event Fund sold by you on behalf of Default the Trust. Prior to the termination of this Agreement, the Trust will not file any amendment to any Registration Statement or amendment or supplement to any Prospectus or SAI (whether pursuant to the 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 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 circumstance that may give rise such amendment or supplement to an Event of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent you. Subject to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writingforegoing sentence, if the Borrower filing of any Prospectus or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust)SAI, except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be, 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 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 (i) undertakes 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 addition to Clauses 57.1 and 57.2any of the foregoing, (iv) in its capacity as trustee of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust and in its own right as follows:
(a) to comply fully with its obligations 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 Deed and at law;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) not do anything that 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 cause include any untrue statement of a material fact or enable its removalomit to state any material fact necessary to make the statements therein, nor retire or cease to act, as trustee in the light of the Trust; andcircumstances 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 exercise the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its right shareholders and, subject to Section 8 of indemnity from this Agreement, to you (with sufficient copies for the trust fund 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 beneficiaries 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 it needs toso 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 order connection with the filing of any post-effective amendment to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from any Registration Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund" in any Prospectus or SAI that is deemed material by you, the Trust, if so requested, shall furnish to you an opinion of counsel for the Trust, dated the date of such post- effective amendment, to the effect of paragraph 2 (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 furnish to you an opinion of counsel for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in any Prospectus or SAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the 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 until and the Agreement is terminatedFund 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 with respect to an amendment of a Registration Statement which first includes certified financial statements for the 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 date on which the Trust, 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 figures 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 conformity 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. 57.1 Except The Company undertakes to the extent the Lender otherwise consents in writing, each Security Agent (for and on behalf of the Borrower and Secured Parties) at all times during the Guarantor undertakes subsistence of this Agreement as follows:
(a) the Company shall not assign or otherwise dispose of or undertake to notify assign or otherwise dispose of to any Person all or any of the Lender as soon as it becomes aware of any Event of Default or of any circumstance that may give rise to an Event of DefaultAssigned Rights (other than the assignment created hereunder);
(b) the Company shall not create, grant or permit to notify exist any Lien over all or any of the Lender Assigned Rights (except for any Lien referred to in paragraph 3(f) or 3(q) of Schedule 5 Part B of the Common Terms Agreement and any changes to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is givenMandatory Permitted Lien);
(c) the Company shall not, without the prior written consent of the Security Agent, agree to notify the Lender as soon as it becomes aware any reduction or settlement of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory amount payable by Macau SAR under or pursuant to the LenderConcession Contract unless such amount is less than US$500,000;
(d) the Company shall not, without the prior written consent of the Security Agent, revoke or change its request/direction to notify pay all Government Amounts into the Lender as soon as it becomes aware account referred to in paragraph B.6 (Payment to Designated Account) of any circumstance that may cause a Material Adverse Eventthe Gaming Concession Consent Agreement;
(e) if it is an individualthe Company shall promptly notify the Security Agent in writing of:
(i) the occurrence of any circumstance (including, or individual entering into the Agreement as trustee without limitation, any breach of a trust, it will use all money advanced to it any obligations of Macau SAR under the Agreement wholly Concession Contract) which could reasonably be expected to give rise to a claim against Macau SAR under the Concession Contract;
(ii) the occurrence of any event or predominantly for business the receipt by it of any notice that could reasonably be expected to prejudice (1) materially the value of the Assignment, (2) all or investment purposesany of the Assigned Rights or (3) the ability of the Security Agent to enforce its rights hereunder and/or to enforce the Assignment; and
(iii) each and every Government Amount;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets Company shall:
(i) at any time forming part after the Security Agent shall have delivered an Enforcement Notice and at the written request of the Secured Portfolio Security Agent, deliver a written notice to the Security Agent within 15 days of such request setting out in reasonable detail all outstanding Government Amounts, the Company acknowledging that, if the Security Agent enforces the Assignment, it will do so in reliance of such notice;
(ii) promptly, upon the Security Agent’s written request, furnish the Security Agent with all information and documentation in its possession required or convenient for the exercise or enforcement by the Security Agent of its rights under and/or arising under this Agreement unless such disclosure is prohibited by law provided that any such requirement shall be reasonable prior to the delivery of an Enforcement Notice to the Company; and
(iii) do and execute all things and documents as the trustee Security Agent shall require it to do or execute for the purpose of exercising the Security Agent’s Rights, securing and/or perfecting the Assignment and/or enforcing the Assignment provided that any trust;such requirement shall be reasonable prior to the delivery of an Enforcement Notice to the Company.; and
(g) if, notwithstanding paragraph B.6 (Payment to fully comply with all laws binding on it;
(hDesignated Account) to supply of the Gaming Concession Consent Agreement, the Company receives any Government Amount prior to the Lender when requested to do so discharge of the security constituted hereunder by the Lender Security Agent as contemplated by Clause 16.20 of the Deed of Appointment and Priority, the Company shall immediately pay such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided Government Amounts to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they dealSecurity Agent.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 1 contract
Undertakings. 57.1 Except 4.1 The Borrower shall ensure that during the Security Period:
4.1.1 except as permitted under the Loan Documents, there is no Disposal of the Account and no Security Interest shall exist over, or in relation to, the Account except for this Deed;
4.1.2 the undertakings contained in section 4.12 of the Credit Agreement so far as they relate to the extent Account and clause 4.2 hereof shall be complied with during the Lender otherwise consents in writingSecurity Period and the Borrower shall not make any withdrawal from the Account except as permitted under the Credit Agreement and clauses 4.2 and 4.3 hereof;
4.1.3 the Borrower shall not agree to alter the terms of, each or close or waive its Rights under, the Account held with the Account Bank except with the prior approval of the Chargee;
4.1.4 the Borrower and the Guarantor undertakes as follows:
(a) to shall notify the Lender Chargee as soon as it becomes aware of any Event matter which might reasonably be expected to have a material adverse effect on the Rights of Default the Chargee under or of in connection with this Deed, including a claim by any circumstance that may give rise Person to an Event interest in the Account; and
4.1.5 the Borrower shall provide the Chargee with such information about the Account and/or the extent to which it has complied with its obligations under this Deed and with copies of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice such documents which create, evidence or Margin Call will be sent relate to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio Account as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender Chargee may from time to time reasonably request; and.
(i) 4.2 Unless the Chargee shall have notified the Account Bank that an Enforcement Time is continuing, the Borrower shall be entitled, without the consent of the Chargee, to ensure that instruct the accounts and information provided Account Bank to disburse all or any of the moneys standing to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view credit of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writingAccount, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as followseither to:
(a) the account of the Builder (or its order) at such account as shall be specified by the Builder to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction the Account Bank as partial payment of incorporation the contract price (including change orders) of the Purchased Vessel payable by the Borrower on delivery of the Purchased Vessel; or enter any merger or consolidation; andBD-#9319295-v6 4
(b) the account of the Chargee at[insert account details] as prepayment, in whole [or in part] 4, in accordance with sections 3.1(a), 3.7 or 9.2 of the Credit Agreement. For the purposes of this clause 4.2(b), if the Borrower shall prepay the Loans in whole [or in part] 4 pursuant to ensure that any new sections 3.1(a), 3.7 or existing director 9.2 of it promptly becomes a party the Credit Agreement, the Chargee will consent to the Agreement if disbursement of funds to third party counterparties for the Lender askspurpose of foreign exchange, so long as such exchanged funds are paid directly to such account as may be designated by the Chargee. Subject to clause 4.3, all other withdrawals from the Account shall require the prior written consent of the Chargee, which shall be granted in the Chargee’s sole discretion.
57.3 If (a) Upon the instruction of the Borrower and subject to clause 4.4, the Account Bank shall invest and reinvest Euro-denominated funds held in the Account in (i) insured certificates of deposit of, or time deposits with, the Guarantor Account Bank or (ii) commercial paper issued by the Account Bank. The earnings from such investments shall be credited to the Account.
(b) Unless the Chargee shall have notified the Account Bank that an Enforcement Time is continuing, the trustee Account Bank shall, from time to time upon the request of the Borrower, release any earnings from such investments to the Borrower.
4.4 It shall be a trust (condition of the Trust)agreement of the Chargee to allow marketable securities to be acquired pursuant to clause 4.3 that, except to the extent that such marketable securities are not capable of being secured by this Deed, prior to such acquisition, a charge or pledge in respect of such marketable securities in form and on terms acceptable to the Lender otherwise consents Chargee, shall be executed in writing, favour of the Chargee together with supporting evidence and legal opinions as to the authority of the Borrower or to execute and the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 valid and 57.2) in its capacity as trustee binding nature of the Trust same.
4.5 The Borrower shall deposit with the Chargee all certificates of deposit, receipts or other instruments or securities relating to the Account, notify the Chargee of any claim or notice relating to the Account from any other party and provide the Chargee with any other information it may reasonably request concerning the Account.
4.6 The Chargee agrees that if it is the Account Bank in its own right respect of the Account then there will be no restrictions on charging the Account as follows:
(a) to comply fully with its obligations under the Trust contemplated by this Deed and at law;
(b) it shall not do anything that would cause exercise any right of combination, consolidation or enable its removal, nor retire or cease to act, as trustee set-off which it may have in respect of the Trust; and
(c) Account in a manner adverse to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date rights of the Lenders. 4 To be included only if Credit Agreement until the Agreement is terminated.has been amended to include partial prepayment. BD-#9319295-v6 5
Appears in 1 contract
Undertakings. 57.1 Except 9.1 The Borrower must not transfer or dispose of or create or allow to exist any Security over
(i) Station Access Charges (ii) any future forms of revenue under Regulated Contracts which is of a type that the Borrower does not currently receive as at the date of this Agreement (iii) Track Access Charges or (iv) grants by the Lender to the extent Borrower and by Scottish Ministers to the Borrower.
(a) The Borrower must not incur, and must procure that none of the Borrower Group or a Holding Company incurs, any Financial Indebtedness which may be utilised for the purpose of financing, or in connection with, Permitted Business, except for:
(1) Financial Indebtedness under this Agreement;
(2) Intra-Group Loans;
(3) foreign exchange contracts relating to contracts for the purchase or supply of goods or services entered into by a member of the Borrower Group in the ordinary course of its business;
(4) commodities hedging relating to contracts for the purchase or supply of goods or services entered into by a member of the Borrower Group in the ordinary course of its business;
(5) counter indemnities provided by the Borrower or any of its Subsidiaries for letters of credit or performance bonds and parental company guarantees provided by the Borrower or any of its Subsidiaries relating to contracts for the purchase or supply of goods or services or insurance contracts, provided that such counterindemnities or parental company guarantees:
(A) were entered into by the Borrower or its Subsidiaries in the ordinary course of its business;
(B) are dated before the date of this Agreement and disclosed to the Lender otherwise consents in writingwriting before the date of this Agreement; and
(C) are not provided for the purposes of benefiting or supporting the incurrence of Financial Indebtedness;
(6) renewals and amendments (including amendments as to amount) from time to time of the letters of credit, performance bonds or parental company guarantees contemplated by paragraph (5) above in respect of which the conditions in paragraph (5) (other than paragraph (B)) remain satisfied, unless at least 40 Business Days before its expiry the Lender has given the Borrower notice that they may no longer be renewed or amended and an alternative arrangement is available and has been accepted by the relevant counterparty;
(7) any offsetting swaps entered into solely to unwind a member of the Borrower Group's liabilities in respect of its Existing Hedging; and
(8) overdraft facility and other borrowing facilities subject to an aggregate limit of £50,000,000 at any time.
(b) The Borrower must not incur, and must procure that none of the Borrower Group or a Holding Company incurs, Financial Indebtedness (including to refinance or replace existing Financial Indebtedness) which benefits from or is supported by the Financial Indemnity, except for:
(1) counter indemnities provided by the Borrower or any of its Subsidiaries for letters of credit relating to contracts for the purchase or supply of goods or services or insurance contracts, provided that such counterindemnities:
(A) were entered into by the Borrower or its Subsidiaries in the ordinary course of its business;
(B) are dated before the date of this Agreement and disclosed to the Lender in writing before the date of this Agreement; and
(C) are not provided for the purposes of benefiting or supporting the incurrence of Financial Indebtedness;
(2) renewals and amendments (including amendments as to amount) from time to time of the letters of credit, contemplated by paragraph (1) above in respect of which the conditions in paragraph (1) (other than paragraph (B)) remain satisfied, unless at least 40 Business Days before its expiry the Lender has given the Borrower notice that they may no longer be renewed or amended and an alternative arrangement is available and has been accepted by the relevant counterparty;
(3) any offsetting swaps entered into solely to unwind a member of the Borrower Group's liabilities in respect of its Existing Hedging; and
(4) overdraft facility and other borrowing facilities subject to an aggregate limit of £50,000,000 at any time.
(c) The restrictions in this Clause 9.2 shall not apply where the Lender has repudiated its obligation to lend under this Agreement, or while it is in breach of that obligation.
(d) For the avoidance of doubt, nothing in this Clause 9.2 shall prevent the Borrower from incurring Financial Indebtedness, that does not benefit from or receive support from the Financial Indemnity, for the purposes of financing any business or activity falling within Clause 2.3(A)(1). The Borrower must disclose any such Financial Indebtedness to the Lender in writing before the date of this Agreement, or before incurring such Financial Indebtedness.
9.3 The Borrower must provide to the Lender, on or before the date notified to the Borrower not less than 14 days in advance of such date, all information, including forecasts and estimates of expenditure and services, reasonably required for the purposes of ensuring that, in connection with utilisations and repayments under this Agreement, all information submissions to parliament and HM Treasury for the purposes of Estimates and any Vote on Account are consistent with parliamentary and HM Treasury requirements.
9.4 On or before the 6th Business Day (the “Delivery Date”) of each calendar month, the Borrower must provide to the Lender a forecast of the amount that it expects to draw and repay under this Agreement in the following calendar month (or such other forecast as the Borrower and the Guarantor undertakes as followsLender may agree), provided that the Borrower may submit changes to such forecast which do not exceed £10,000,000 in value on or before the date falling 6 Business Days after the Delivery Date.
9.5 The Borrower must provide to the Lender an updated forecast of:
(aA) to notify on 30 September 2014, and on each 31 March and 30 September thereafter, for the Lender following 12 month period (the “Initial Period”), the aggregate amount of all Utilisations in each calendar month and the aggregate amount of all Loans as soon as it becomes aware of any Event of Default or of any circumstance that may give rise to an Event of Default;
(b) to notify the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is given;
(c) to notify the Lender as soon as it becomes aware end of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lender;
(d) to notify the Lender as soon as it becomes aware of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time requesteach calendar month; and
(iB) to ensure that on each 31 March, for each Financial Year starting after the accounts expiry of the relevant Initial Period but before the expiry of the Availability Period, the aggregate amount of all Utilisations in each Financial Year and information provided to the aggregate amount of all Loans as at the end of each Financial Year, or such other forecasts as the Borrower and the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they dealmay agree.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 1 contract
Samples: Facility Agreement
Undertakings. 57.1 Except to 9.1 The Chargor undertakes with the extent the Lender otherwise consents in writing, each Chargee that so long as any part of the Borrower and Secured Obligations remains outstanding, the Guarantor undertakes as followsChargor will:
(a) duly and promptly pay all calls which may from time to notify time be made in respect of any unpaid moneys in respect of the Lender Shares and any other moneys which the Chargee may lawfully be required to pay in respect of any of the Shares and in the event of default the Chargee may, if it thinks fit, make such payments on behalf of the Chargor. Any money expended by the Chargee under this Clause 9 shall be deemed to be properly paid by the Chargee and all moneys so expended by the Chargee shall on demand be repaid by the Chargor to the Chargee together with interest thereon from the date of expenditure until payment and until so repaid shall form part of the Secured Obligations and be charged on the Shares.
(b) as soon as it becomes aware aware, inform the Chargee of:
(i) the occurrence of any Event of Default or of any circumstance that may give rise to an Potential Event of Default;
(bii) to notify any current, pending or threatened litigation, arbitration or administration proceedings against any of the Lender Buyers;
(iii) the occurrence of any changes event which, in the Chargor’s reasonable opinion, might adversely affect the ability of any of the Buyers to its contact details and acknowledge that fully perform their respective obligations under any Notice or Margin Call will be sent to of the contact details held by the Lender at the time the Margin Call or Notice is givenTransaction Documents;
(c) to notify remain the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, sole registered and if the Lender asks, evidence beneficial owner of the authority of any Authorised Person that is satisfactory to the LenderShares at all times;
(d) furnish to notify the Lender Chargee such information as soon as it becomes aware of any circumstance that the Chargee may cause a Material Adverse Eventfrom time to time reasonably require;
(e) if it is an individualtake all reasonable steps to warrant and defend his title to and the security interest in the Shares hereby created in favour of the Chargee against any and all claims, legal actions, suits or individual entering into proceedings by any other persons, whether or not as may be required by the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposesChargee;
(f) unless it is entering into procure that at all times the Agreement in Charged Shares are free from any restrictions on transfer (other than as may be provided under all laws and regulations applicable to the capacity of trustee of a trust, not to hold any assets at any time forming part of Chargor or as otherwise created or permitted under the Secured Portfolio as the trustee of any trustTransaction Documents);
(g) do or permit or procure to fully comply with all laws binding on itbe done every act or thing which the Chargee may from time to time reasonably require for the purpose of enforcing the rights of the Chargee under this Charge;
(h) immediately upon the appointment or removal of any director(s) of the Company, deposit or procure that there be deposited with the Chargee a signed letter of resignation by such newly appointed director(s) (in the form set out in Schedule 3 hereto) and those documents as set out in Clauses 3.1(d) and 3.1(e) duly signed by all directors of the Company and such other documents as the Chargee may reasonably require;
(i) not create or agree to supply create or permit to arise or subsist any encumbrance over all or any of the Lender when requested to do so by the Lender such financial accounts Shares or grant in favour of any person any option or other information relating to it (rights or any trust interest in respect of the Shares (other than as created or permitted by this Charge) without the prior written consent of the Chargee;
(j) not approve or agree to any alteration or amendment of the articles of association of the Company which it is entering into may adversely affect the Agreement as trustee) as security interest created hereunder or enforcement of the Lender may from time to time requestrights of the Chargee under this Charge without the prior written consent of the Chargee; and
(k) not permit or approve without the prior written consent of the Chargee (i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view reorganisation of the matters share capital of the Company, (ii) merger with which they dealor de-merger of the Company from other companies; (iii) liquidation, dissolution or winding-up of the Company, or (iv) public listing of the Company.
57.2 Except to 9.2 The Chargor shall deposit with the extent that Chargee within seven (7) Business Days upon allotment or acquisition of any further issued shares of the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as followsCompany:
(a) share certificates in respect of the further shares of the Company that amounts to do everything necessary to maintain its corporate existence all rights, title and interests held by the Chargor in good standing and not to transfer its jurisdiction the entire issued shares in the then capital of incorporation or enter any merger or consolidationthe Company (the “Further Issued Shares”); and
(b) to ensure that any new or existing director undated instrument of it promptly becomes a party transfer and sold note in relation to the Agreement if Further Issued Shares duly executed by the Lender asksChargor in blank in the form set out in Schedule 2 hereto.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Qiwi)
Undertakings. 57.1 Except to the extent The Borrower hereby undertakes with the Lender otherwise consents in writing, each of the Borrower and the Guarantor undertakes that as followslong as any moneys are outstanding under this Agreement:
(a) to notify it will promptly inform the Lender as soon as of any occurrence of which it becomes aware which by giving of notice and/or by lapse of time or otherwise would constitute an event of default under this Agreement or any Event occurrence of Default or of any circumstance that may give rise which it becomes aware which in its reasonable opinion, might otherwise adversely affect its ability to an Event of Defaultperform its obligations under this Agreement;
(b) it will obtain or procure the obtaining of every consent and license and do all other acts and things as may from time to notify time be necessary or desirable for the Lender due performance of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is givenobligations under this Agreement;
(c) to notify it will not create or have outstanding any indebtedness secured on or over its assets or revenues, whether now owned or hereinafter existing, except for liens, security interests, encumbrances, mortgages and pledges arising solely by operation of law and in the Lender as soon as it becomes aware ordinary course of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence of the authority of any Authorised Person that is satisfactory to the Lenderoperations;
(d) it will maintain insurance cover in relation to notify its business and assets of a type and in an amount as is usual for prudent companies carrying on a business such as that carried on by the Lender as soon as it becomes aware Borrower in the place of any circumstance that may cause a Material Adverse Eventits operations;
(e) if it is an individualwill provide the Lender, as soon as available but in any event not later than 180 days after the close of its financial year, with its audited unconsolidated and consolidated financial statements (including balance sheets and profit and loss accounts) and supply the Lender with copies of its audited (where required by law, or individual entering into if not, unaudited) interim report(s) as soon as available but in any event not later than 90 days after the Agreement as trustee end of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;relevant period; and
(f) unless it is entering into will procure that the Agreement in the capacity of trustee of a trust, Acquisition Sub will not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that sell or otherwise dispose of its shares of Raymxxx Xxxporation (otherwise than contemplated in the accounts and information provided to Merger Agreement) or (ii) create any pledge on or over the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view shares of the matters with which they deal.
57.2 Except to the extent that the Lender Raymxxx Xxxporation (otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking than contemplated in this Clause 57 continues from the date of the Agreement until the Agreement is terminatedAgreement).
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Lift Acquisition Co Inc)
Undertakings. 57.1 Except 11.1 Between the date of this Agreement and Completion:
(a) AWI shall exercise such corporate power as it is entitled to exercise under the relevant Applicable Laws in order to ensure that the Group provides the Purchaser, on a no liability basis, with such financial, legal or operational information as the Purchaser may reasonably request; and
(b) the Purchaser shall be entitled to reasonable access to the extent Management Team, in each case for the Lender purposes of monitoring the operation of the Business, but not so as to cause disruption to the on-going business of any Group Company, provided that (i) any such access or provision of information shall be scheduled and coordinated through Xx Xxxxxx Xxxxxxxx and Xx Xxxxxxx Xxxxxxx and shall be conducted at Purchaser’s expense and (ii) the obligations of AWI under this Clause 11.1 shall not extend to allowing access to information the disclosure of which could reasonably be regarded as likely to (1) cause competitive harm to the Business if the Transaction is not consummated, (2) jeopardize any attorney-client or other legal privilege; or (3) give rise to breaches of any Applicable Laws (including competition or regulatory legislation).
11.2 The Parties agree to procure that as soon as reasonably practicable after the date of this Agreement and in any event prior to Completion:
(a) AWI and the Purchaser shall finalise the terms of, and enter into, an agreement relating to the mutual supply of certain respective goods between the Group Companies and AWI after Completion (the “Mutual Supply Agreement”), which shall be substantially in the Agreed Form and shall provide that:
(i) all goods supplied between the Group Companies and AWI as at Completion shall, after Completion, continue to be supplied at a price consistent with past pricing mechanisms, it being understood that no minimum purchase obligation applies; and
(ii) the agreement shall remain in force for a period of two (2) years from Completion after which date it could be terminated by either of the parties thereto upon a sixty (60) day prior written notice;
(b) WAVE and the Purchaser shall finalise the terms of, and enter into, an agreement relating to the mutual supply of goods between WAVE and one or more of the Group Companies after Completion (the “WAVE Supply Agreement”), which shall be substantially in the Agreed Form and shall provide that:
(i) all goods supplied between WAVE and any Group Company as at Completion shall, after Completion, continue to be supplied at a price to be mutually agreed; and
(ii) the agreement shall remain in force for a period of two (2) years from Completion after which date it could be terminated by either of the parties thereto upon a sixty (60) day prior written notice;
(c) WAVE and the Purchaser shall finalise the terms of, and enter into, an agreement relating to the use of certain Intellectual Property, including the Licenced WAVE IP, by the Group Companies after Completion, substantially in the same form as the AWI IP Licence Agreement (subject to provisions relating to the payment of royalties in respect of certain licenced Intellectual Property) and otherwise consents in writinga mutually acceptable form (the “WAVE IP Licence Agreement”); and
(d) AWI and the Purchaser shall finalise the terms of, and enter into, an agreement relating to certain services to be provided by AWI to the Group Companies after Completion (the “Transition Services Agreement”), which shall be substantially in the Agreed Form and shall provide that:
(i) the services to be provided by AWI to the Group Companies shall consist of: process engineering support for operations and IT (SAP maintenance support, network, network security and website);
(ii) each of the Borrower services shall be provided at a price equal to all costs and out-of-pocket expenses incurred by AWI Group in connection with the provision of that service plus 10 per cent; and
(iii) the agreement shall remain in force for a period of one (1) year from Completion before which date it could be terminated by the Purchaser upon a sixty (60) day prior written notice.
11.3 In the event that any Applicable Law requires the observance of any specified formalities or documents in order to effect the transfer of Sale Shares in accordance with this Agreement, the Parties shall prepare and, at Completion, enter into short-form share transfer agreements in a form reasonably satisfactory to AWI (the “Local Share Transfer Agreements”). The Parties agree that (i) the Local Share Transfer Agreements shall only contain provisions necessary to satisfy the requirements of Applicable Law to effect, and make enforceable vis-à-vis third parties, the transfer of the legal and beneficial title to the relevant Sale Shares, (ii) the Local Share Transfer Agreements shall not affect the Parties’ rights and obligations with respect to the Transaction which shall be determined by this Agreement; and (iii) in the case of a discrepancy between the provisions of a Local Share Transfer Agreement and this Agreement, the provisions of this Agreement shall prevail.
11.4 The Purchaser shall use all reasonable endeavours to procure that on Completion, or as soon as reasonably practicable following Completion, AWI and any other member of the Seller Group is released from all guarantees and indemnities Disclosed to the Purchaser prior to the date of this Agreement that are given (if any) in respect of obligations of any Group Company and, pending such release, the Purchaser shall indemnify and hold harmless AWI (for itself and as trustee on behalf of the other relevant members of the Seller Group) against all losses (including liabilities (including present and future damages), claims and reasonable costs and expenses) under or in connection with those guarantees and indemnities.
11.5 AWI shall use all reasonable endeavours to procure that on Completion, or as soon as reasonably practicable following Completion, each Group Company is released from all guarantees and indemnities given (if any) by it in respect of obligations of AWI or any other member of the Seller Group (other than a Group Company) and, pending such release, AWI shall indemnify and hold harmless the Purchaser and each other relevant Group Company against all losses (including liabilities (including present and future damages), claims and reasonable costs and expenses) under or in connection with those guarantees and indemnities.
11.6 Except with respect to the Transition Services Agreement, the AWI IP Licence Agreement, the WAVE IP Licence Agreement and the Guarantor Supply Agreements (each a “Surviving Agreement”), immediately prior to Completion, AWI shall, and shall procure any other member of the Seller Group to terminate, effective as of the Completion Date, all contracts between a member of the Seller Group (other than a Group Company), on the one hand, and any Group Company (“Pre-Completion Group Contracts”), on the other hand. Subject to the occurrence of Completion, (i) AWI hereby agrees not to make or enforce, and undertakes to procure that no other member of the Seller Group makes or enforces, any claim against a Group Company under or in respect of the Pre-Completion Group Contracts other than under the Surviving Agreements; and (ii) the Purchaser hereby agrees not to make or enforce, and undertakes to procure that no other member of the Purchaser’s Group makes or enforces, any claim against a member of the Seller Group under or in respect of the Pre-Completion Group Contracts other than under the Surviving Agreements.
11.7 The Purchaser acknowledges that all insurance coverage for the Group Companies under policies of AWI and any other member of the Seller Group (other than the Group Companies) shall terminate as followsof the Completion Date and, following the Completion Date, no claims may be brought against any such policy of AWI or any other member of the Seller Group in respect of the Group Companies regardless of whether the events underlying such claim arose prior to or after the Completion Date. AWI undertakes to use reasonable endeavours (at the Purchaser’s cost and expense after Completion) (i) to cause the relevant insurance companies to compensate losses of the Group Companies that have occurred prior to Completion and (ii) to ensure that any proceeds relating to such losses are assigned directly to the relevant Group Company or third-party claimant.
11.8 The Purchaser shall procure that the Group Companies shall retain for a period of ten (10) years from Completion (or such longer period as may be prescribed by Applicable Law) all books, records and other written information relating to the Group Companies, their assets, liabilities and/or business held by the Group Companies as at Completion. This Clause11.8 applies mutatis mutandis to the Seller Group.
11.9 Upon reasonable written notice and at AWI’s expense, the Purchaser shall procure that following Completion the Group Companies shall allow AWI, any other member of the Seller Group and their respective Representatives reasonable access during normal business hours to such books, records and other information (including, the right to inspect and take copies) as may be reasonably required by AWI in order to enable AWI or any other member of the Seller Group to comply with their statutory and contractual obligations (including AWI’s obligations under any Transaction Document) or enforce any contractual rights, provided that any such access will be conducted in such a manner as not to interfere unreasonably with the normal operation of the business of the Group Companies. This Clause 11.9 applies mutatis mutandis to the Seller Group. Without prejudice to the foregoing, the Purchaser shall procure that the books of the Group Companies are closed within six (6) Business Days of the Completion Date in accordance with the past practice of the Group and shall promptly provide AWI with such financial information in respect of Group Companies as AWI may reasonably request in order to comply with its financial reporting obligations, including but not limited to profit and loss and cash flow statements for the period from 1 January 2018 to, and balance sheets as at, the Completion Date.
11.10 From the date of this Agreement until the Completion Date, the Purchaser shall, and shall cause its Affiliates to, contact or communicate with the customers, suppliers, distributors and licensors of the Group in connection with the Transaction only with the prior written consent of AWI.
11.11 The Purchaser undertakes to enter into the W&I Insurance Policy as soon as reasonably practicable after the date of this Agreement, in such form as AWI shall approve (acting reasonably), to pay the premium and other amounts due under the W&I Insurance Policy in accordance with the terms thereof and, during the term of the W&I Insurance Policy:
(a) to notify maintain the Lender as soon as it becomes aware of any Event of Default or of any circumstance that may give rise to an Event of DefaultW&I Insurance Policy in full force and effect;
(b) not to notify agree to amend the Lender of any changes to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is given;W&I Insurance Policy without AWI’s prior written approval; and
(c) not to notify assign the Lender as W&I Insurance Policy (except that the Purchaser may pledge its rights under the W&I Insurance Policy for the purpose of financing the Transaction).
11.12 Prior to the Completion Date AWI shall assign all of its right, title and interest in the Assigned AWI IP to a Group Company (the “Assignee”) pursuant to the AWI IP Assignment Agreement and shall procure that WAVE or the relevant WAVE Affiliate assigns all of its right, title and interest in the Assigned WAVE IP to the Assignee pursuant to the WAVE IP Assignment Agreement. Following the Completion Date, at the Purchaser’s request and expense, AWI shall reasonably assist the Assignee in obtaining any necessary documentation for the recordation of the transfer of registrations and applications for the Assigned AWI IP and the Assigned WAVE IP to the Assignee. The Purchaser shall be responsible for preparing, submitting and paying filing fees with respect to such documents to change and record ownership to the Assignee (except for bringing recordation up to date with respect to predecessors-in-interest, if any), and any other costs related thereto.
11.13 As of and following the Completion Date, the Purchaser’s Group shall not make any new uses of the Retained Trademarks. As soon as it becomes aware reasonably practicable, but no later than ninety (90) days, after the Completion Date, the Purchaser’s Group shall phase-out all use of the Retained Trademarks, and shall thereafter not make any use thereof.
11.14 The Purchaser shall be responsible for providing any notices of the change in ownership of any change in its Authorised Persons, giving Group Company resulting from the Lender specimen signatures Transaction and/or the transfer of any new Authorised Person appointedEnvironmental Licences that may be required by applicable Environmental Laws, and if whether prior to or after Completion. AWI will reasonably cooperate with Purchaser, by signing any documentation which is reasonably required by the Lender asks, evidence of Purchaser in connection with the authority of any Authorised Person that is satisfactory foregoing.
11.15 AWI shall provide the following information to the Lender;
Purchaser by no later than twenty (d20) to notify Business Days following the Lender as soon as it becomes aware date of any circumstance that may cause a Material Adverse Event;
(e) if it is an individual, or individual entering into the Agreement as trustee of a trust, it will use all money advanced to it under the Agreement wholly or predominantly for business or investment purposes;
(f) unless it is entering into the Agreement in the capacity of trustee of a trust, not to hold any assets at any time forming part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they deal.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as followsthis Agreement:
(a) in respect of each Employee: the job title, period of continuous employment, notice period or term of employment, salary, entitlement to do everything necessary to maintain its corporate existence in good standing benefits including variable remuneration, any outstanding incentive awards and not to transfer its jurisdiction of incorporation or enter any merger or consolidationlocation; and
(b) to ensure that in respect of each Senior Employee, copies of the contract of service or terms and conditions of employment, details of any new other agreement (whether or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trustnot in writing), except including golden parachutes, change of control provisions and non-compete covenants regarding their remuneration and employment to the extent that the Lender otherwise consents which any Group Company is a party. The above-mentioned documents will be provided in writing, the Borrower or the Guarantor (a redacted version as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity far as trustee of the Trust and in its own right as follows:
(a) such redactions are necessary to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.relevant Antitrust Laws
Appears in 1 contract
Samples: Share Purchase Agreement (Armstrong World Industries Inc)
Undertakings. 57.1 Except to 4.1 The Pledgor undertakes and agrees with the extent Pledgee that it shall not unless explicitly permitted under the Lender otherwise consents in writing, each of Finance Documents or following the Borrower and prior written consent from the Guarantor undertakes as followsPledgee:
(a) create or permit to notify subsist any Security or grant any other right over any Security Asset other than the Lender as soon as it becomes aware of any Event of Default or of any circumstance that may give rise to an Event of DefaultSecurity created by this Agreement;
(b) subject to notify the Lender Clause 2.2, sell, assign, lease, transfer or otherwise dispose of any changes Security Asset or permit the same to its contact details and acknowledge that any Notice or Margin Call will be sent to the contact details held by the Lender at the time the Margin Call or Notice is givenoccur;
(c) do or cause or permit to be done anything which will, or could reasonably be expected to, materially adversely affect the Security Assets or the rights of the Pledgee hereunder or which in any way is inconsistent with or materially depreciates, jeopardises or otherwise prejudices the Security Assets.
4.2 The Pledgor further undertakes and agrees with the Pledgee that it shall:
(a) promptly notify the Lender as soon as it becomes aware of any change in its Authorised Persons, giving the Lender specimen signatures of any new Authorised Person appointed, and if the Lender asks, evidence Account Bank of the authority of any Authorised Person that is satisfactory Security created by this Agreement by sending a notice to the LenderAccount Bank substantially in the form set out in Schedule 2 (Form of Notice) and provide evidence that such notice has been delivered to the Account Bank and to procure that the Account Bank acknowledges its receipt of such notice and execute any other documentation in connection with the deposition of Shares in the Custody Accounts and the security created by this Agreement as the Pledgee may require;
(b) subject to Clause 2.2, promptly transfer all Related Rights received by the Pledgor after the date hereof to the Custody Account or, if such Related Rights are in the form of cash, the Cash Account, forthwith after the Pledgor has received such Related Rights;
(c) not (i) agree to any amendment or variation of the terms and conditions of the Custody Agreement, (ii) terminate the Custody Agreement or (iii) breach any of the undertakings set out therein (including but not limited to the payment of fees to the Account Bank), in a manner that materially adversely affects the value of the Security Assets or the rights of the Pledgee (without the Pledgee's prior written consent, not to be unreasonably withheld);
(d) to notify at all times exercise the Lender as soon as it becomes aware voting rights in respect of any circumstance that may cause the Shares only in a Material Adverse Eventmanner which does not materially adversely affect the validity, enforceability or existence of the interests of the Pledgee under this Agreement;
(e) if it is an individualupon the request by the Pledgee, or individual entering into promptly and duly take all actions and execute and deliver any and all further documents, powers of attorney, notifications and confirmations necessary for the purpose of obtaining the full benefit of this Agreement and of the rights and powers granted under it, including any that the Pledgee may require in order to perfect and/or preserve the Security over the Security Assets as trustee of a trust, it will use all money advanced to it created under this Agreement and/or the Agreement wholly or predominantly for business or investment purposesPledgee' rights under this Agreement;
(f) unless it is entering into subject to Clause 2.2, immediately on receipt of any Security Assets, certificate or other document evidencing any entitlement to any further or other Security Assets deposit such Security Assets, certificate or document with the Agreement Pledgee duly endorsed in blank (if applicable) together with such other documents as the Pledgee may require; and
(g) when so requested by the Pledgee issue to the Pledgee a proxy substantially in the capacity form set out in Schedule 1 (Form of trustee Proxy). The Pledgor also undertakes, when requested by the Pledgee, to issue a new such proxy in order to replace any expired or annulled proxy.
4.3 The Pledgor will make all payments which may become due in respect of a trustany of the Security Assets and will discharge all other obligations in respect thereof and if it fails to do so the Pledgee may elect to make such payments or discharge such obligations on behalf of the Pledgor. Any sums so paid by the Pledgee shall be repayable by the Pledgor to the Pledgee promptly together with interest at the interest rate set out in Clause 7.4(Default interest) of the Facilities Agreement, not to hold from the date of such payment by the Pledgee and pending such payment any assets at any time forming sums shall form part of the Secured Portfolio as the trustee of any trust;
(g) to fully comply with all laws binding on it;
(h) to supply to the Lender when requested to do so by the Lender such financial accounts or other information relating to it (or any trust in respect of which it is entering into the Agreement as trustee) as the Lender may from time to time request; and
(i) to ensure that the accounts and information provided to the Lender under Clause 57.1(h): i comply with current accounting practice except to the extent disclosed in them and with all applicable laws; and ii give a true and fair view of the matters with which they dealObligations.
57.2 Except to the extent that the Lender otherwise consents in writing, if the Borrower or the Guarantor is a company it undertakes (in addition to Clause 57.1) as follows:
(a) to do everything necessary to maintain its corporate existence in good standing and not to transfer its jurisdiction of incorporation or enter any merger or consolidation; and
(b) to ensure that any new or existing director of it promptly becomes a party to the Agreement if the Lender asks.
57.3 If the Borrower or the Guarantor is the trustee of a trust (the Trust), except to the extent that the Lender otherwise consents in writing, the Borrower or the Guarantor (as the case may be) undertakes (in addition to Clauses 57.1 and 57.2) in its capacity as trustee of the Trust and in its own right as follows:
(a) to comply fully with its obligations under the Trust Deed and at law;
(b) not do anything that would cause or enable its removal, nor retire or cease to act, as trustee of the Trust; and
(c) to exercise its right of indemnity from the trust fund and beneficiaries if it needs to, in order to meet its obligations under the Agreement.
57.4 Each undertaking in this Clause 57 continues from the date of the Agreement until the Agreement is terminated.
Appears in 1 contract