Conditions of First Disbursement. The obligation of IFC to make the first Disbursement is subject to the fulfillment prior to or concurrently with the making of that first Disbursement of the following conditions: (a) the following agreements, each in form and substance satisfactory to IFC, have been entered into by all parties to them and have become (or, as the case may be, remain) unconditional and fully effective in accordance with their respective terms (except for this Agreement having become unconditional and fully effective, if that is a condition of any of those agreements), and IFC has received a copy of each of those agreements to which it is not a party: (i) each Transaction Document; and (ii) the Parallel Loan Agreement(s). (b) all contractual arrangements for implementation of the Project, at an aggregate cost not exceeding the estimated Project cost pursuant to Section 2.02 (Project Cost and Financial Plan) shall have been executed by the parties thereto; (c) the Co-Borrowers have certified to IFC that each Co-Borrower is existing and in good standing and no amendment has been made to their respective Charter since August 29, 1997 with respect to PSMT and September 6, 2000 with respect to PSPH, or if any such amendment was made, IFC has received a copy of each such Co-Borrower’s amended Charter and determined, in its reasonable judgment, that it is not inconsistent with the provisions of any Transaction Document and does not have or may not reasonably be expected to have a Material Adverse Effect; (d) the IFC Security has been duly created and perfected as first ranking security interests in all assets and rights which are the subject of the Security Documents; (e) the Co-Borrowers have obtained, and provided to IFC copies of, all Authorizations listed in Section (1) and Section (2) of Annex A (Co-Borrowers/Project Authorizations), and such other Authorizations not listed in those Sections that may become necessary for: (i) the Loan and the Parallel Loan(s); (ii) the business of the Co-Borrowers as it is contemplated to be carried on; (iii) the Project and the implementation of the Financial Plan; (iv) the due execution, delivery, validity and enforceability of, and performance by the Co-Borrowers of their obligations under, this Agreement and the other Transaction Documents and any other documents necessary or desirable to the implementation of any of those agreements or documents; and (v) the remittance to IFC or its assigns in Dollars of all monies payable with respect to the Transaction Documents; and all those Authorizations are in full force and effect; (f) IFC has received the following legal opinions: (i) PSPH’s counsel in the Philippines, concurred in by IFC’s counsel in the Philippines on the matters set out in Schedule 5 Part I; (ii) PSMT’s counsel in California on the matters set out in Schedule 5 Part II; and (iii) IFC’s counsel in New York on the matters set out in Schedule 5 Part III; (g) IFC has received a certification from the Auditors of PSPH confirming that, as at a date not earlier than sixty (60) days prior to the date of first Disbursement, PSPH is in compliance with the provisions of Section 6.01(c) (Affirmative Covenants) and containing a brief description of the systems and records in place; (i) IFC has received copies of all insurance policies required to be obtained pursuant to Section 6.04 (Insurance) and Annex B (Insurance Requirements) prior to the date of first Disbursement, and a certification of the Co-Borrowers’ insurers or insurance agents confirming that such policies are in full force and effect and all premiums then due and payable under those policies have been paid; (j) IFC has received the fees specified in Section 3.07 (Fees) required to be paid before the date of the first Disbursement; (k) if IFC so requires, IFC has received the reimbursement of all invoiced fees and expenses of IFC’s counsel as provided in Section 3.15(b)(ii) (Expenses) or confirmation that those fees and expenses have been paid directly to that counsel; (l) IFC has received a copy of the authorization to the Auditors referred to in Section 6.01(e) (Affirmative Covenants) together with a confirmation from the Auditors that they shall provide IFC with all necessary original Financial Statements and other accounting information to be provided to IFC pursuant to the terms of this Agreement; (m) IFC has received a Certificate of Incumbency and Authority for each of the Co-Borrowers; (n) each Co-Borrower has delivered to IFC evidence, substantially in the form of Schedule 4 (Form of Service of Process Letter), of appointment of an agent for service of process pursuant to Section 8.03(d) (Applicable Law and Jurisdiction); (o) the Co-Borrowers and IFC have agreed on the form of the Annual Monitoring Report; (p) there shall be been made arrangements satisfactory to IFC, in its sole discretion, for installing and implementing the accounting and cost control systems and management information systems and books of account and other records, which together is capable of generating information which adequately reflect truly and fairly the financial condition of each of the Co-Borrowers and the result of its respective operations in conformity with the Accounting Principles; and (q) the Auditors have delivered to IFC a certification confirming that based on the Auditor’s valuation (performed on a cost basis), Co-Borrowers shall be in compliance with Section 6.01(j)(i) and (iii) after giving effect to the Disbursement.
Appears in 1 contract
Sources: Omnibus Agreement (Pricesmart Inc)
Conditions of First Disbursement. The obligation of IFC to make the first Disbursement is subject to the fulfillment prior to or concurrently with the making of that first Disbursement of the following conditions:
(a) the following agreements, each in form and substance satisfactory to IFC, have been entered into by all parties to them and have become (or, as the case may be, remain) unconditional and fully effective in accordance with their respective terms (except for this Agreement having become unconditional and fully effective, if that is a condition of any of those agreements), and IFC has received a copy of each of those agreements to which it is not a party:
(i) each Transaction Document; and
(ii) the Parallel OPIC Loan Agreement(s).Agreement;
(b) all contractual arrangements for implementation of the Project, at an aggregate cost not exceeding the estimated Project cost pursuant to Section 2.02 (Project Cost and Financial Plan) shall have been executed by the parties thereto;
(c) the Co-Borrowers have certified to IFC that each Co-Borrower is existing and in good standing and no amendment has been made to their respective Charter Charters since August 29, 1997 with respect to PSMT and September 6PriceSmart, 2000 October 21, 1999 with respect to PSPHPSMT Trinidad, and October 22, 1998 with respect to PSMT Caribe, or if any such amendment was made, IFC has received a copy of each such Co-Borrower’s 's amended Charter and determined, in its reasonable judgment, that it is not inconsistent with the provisions of any Transaction Document and does not have or may not reasonably be expected to have a Material Adverse Effect;
(dc) the IFC Security has been duly created and perfected perfected/registered as first ranking security interests in all assets and rights which are the subject of to the Security Documents;
(ed) the Co-Borrowers have obtained, and provided to IFC copies of, all Authorizations listed in Section (1) and Section (2) of Annex A (Co-Borrowers/Project Authorizations)A, and such other Authorizations not listed in those Sections that may become necessary for:
(i) the Loan Loans and the Parallel Loan(s)OPIC Loan;
(ii) the business of each of the Co-Borrowers as it is contemplated to be carried on;
(iii) the Project and the implementation of the Financial Plan;
(iv) the due execution, delivery, validity and enforceability of, and performance by the Co-Borrowers of their respective obligations under, this Agreement and the other Transaction Documents Documents, and any other documents necessary or desirable to the implementation of any of those agreements or documents; and
(v) the remittance to IFC or its assigns in Dollars of all monies payable with respect to the Transaction Documents; and all those Authorizations are in full force and effect;
(e) IFC has received a legal opinion to the effect set out in Schedule 5(A), from IFC's counsel in each of the Countries and concurred in by counsel for the Co-Borrowers, and covering such other matters relating to the transactions contemplated by this Agreement as IFC may reasonably request;
(f) IFC has received a legal opinion to the following legal opinions:
(ieffect set out in Schedules 5(B-1), 5(B-2) PSPH’s and 5(B-3) from IFC's counsel in each of the Honduras, Guatemala, Aruba, the Philippines, concurred in by IFC’s counsel in El Salvador, Costa Rica, Panama, and Dominican Republic, and covering such other matters relating to the Philippines on Share Retention Agreement and the matters set out in Schedule 5 Part I;
(ii) PSMT’s counsel in California on the matters set out in Schedule 5 Part II; and
(iii) IFC’s counsel in New York on the matters set out in Schedule 5 Part IIIPSMT Caribe Pledge Agreements, as IFC may reasonably request;
(g) IFC has received a legal opinion to the effect set out in Schedule 5(C), from its special counsel in New York with regard to the law aspects of the Escrow Account Agreement;
(h) IFC has received a legal opinion to the effect set out in Schedule 5(D), from PriceSmart's counsel in New York with regard to the law aspects of this Agreement and the other Transaction Documents;
(i) IFC has received a certification from the Auditors of PSPH confirming that, as at a date not earlier than sixty (60) days prior to the date of first Disbursement, PSPH is the Co-Borrowers are in compliance with the provisions of Section 6.01(c) (Affirmative CovenantsAFFIRMATIVE COVENANTS) and containing a brief description of the systems and records in place;
(ij) IFC has received copies of all insurance policies required to be obtained pursuant to Section 6.04 (InsuranceINSURANCE) and Annex B (Insurance Requirements) prior to the date of first Disbursement, and a certification of the Co-Borrowers’ ' insurers or insurance agents confirming that such policies are in full force and effect and all premiums then due and payable under those policies have been paid;
(jk) IFC has received the fees specified in Section 3.07 (FeesFEES) required to be paid before the date of the first Disbursement;
(kl) if IFC so requires, IFC has received the reimbursement of all invoiced fees and expenses of IFC’s 's counsel as provided in Section 3.15(b)(ii) (ExpensesEXPENSES) or confirmation that those fees and expenses have been paid directly to that counsel;
(lm) IFC has received a copy of the authorization to the Auditors referred to in Section 6.01(e) (Affirmative Covenants) together with a confirmation from the Auditors that they shall provide IFC with all necessary original Financial Statements and other accounting information to be provided to IFC pursuant to the terms of this AgreementAFFIRMATIVE COVENANTS);
(mn) IFC has received a Certificate of Incumbency and Authority for each of from PriceSmart;
(o) the Co-Borrowers;
(n) each Co-Borrower has Borrowers have delivered to IFC evidence, substantially in the form of Schedule 4 (Form of Service of Process Letter)4, of appointment of an agent for service of process pursuant to Section 8.03(d8.05(d) (Applicable Law and JurisdictionAPPLICABLE LAW AND JURISDICTION);
(op) the C Loan has been fully disbursed;
(q) the OPIC Loan shall have been disbursed pro rata with the A Loan; and
(r) IFC shall have received a pay-off letter, in form and substance acceptable to IFC, from each creditor of the Co-Borrowers as reasonably agreed between the Co-Borrowers and IFC have agreed on at the form time of the Annual Monitoring Report;
(p) there shall be been made arrangements satisfactory to IFC, in its sole discretion, for installing and implementing the accounting and cost control systems and management information systems and books of account and other records, which together is capable of generating information which adequately reflect truly and fairly the financial condition of each of the Co-Borrowers and the result of its respective operations in conformity with the Accounting Principles; and
(q) the Auditors have delivered to IFC a certification confirming that based on the Auditor’s valuation (performed on a cost basis), Co-Borrowers shall be in compliance with Section 6.01(j)(i) and (iii) after giving effect to the first Disbursement.
Appears in 1 contract
Sources: Loan Agreement (Pricesmart Inc)
Conditions of First Disbursement. The obligation of IFC the Lenders to make the first Disbursement is under this Agreement shall be subject to the fulfillment performance by the Company of all its obligations theretofore to be performed under this Agreement and to the fulfilment, in a manner satisfactory to the Agent (acting reasonably), prior to or concurrently with the making of that such first Disbursement Disbursement, of the following further conditions:
(a) the following agreements, each in form and substance satisfactory to IFCthe Agent, shall have been entered into by all between the respective parties to them and thereto (if they have not already been entered into), shall have become (or, as the case may be, shall remain) unconditional and fully effective in accordance with their respective terms (except for this Agreement having become unconditional and fully effective, if that is a condition of any of those such agreements), ) and IFC has received a copy of each of those agreements to which it the extent the Agent is not a partyparty to any such agreement, it shall have received a certified copy thereof:
(1) a Project Support Agreement among the Agent, the Initial Lender, the Company and UPC, whereby UPC shall inter alia undertake the following (or, where applicable, UPC shall procure the following):
(i) each Transaction Document; andUPC shall irrevocably and in a manner satisfactory to the Agent either make an equity contribution at par and for ordinary share capital to the Company of NLG 95,000,000 (ninety-five million Netherlands Guilders) or cause such equity contribution to be made by any of its Subsidiaries;
(ii) no change will be made to the Parallel Loan Agreement(sCompany's Charter nor shall the Company be liquidated, without the prior written consent of the Agent;
(iii) UPC will not reduce its direct or indirect voting rights below 51% (fifty-one per cent) or discontinue to be a direct or indirect shareholder of the Company without the prior written consent of the Agent, such consent not to be unreasonably withheld, provided that the pledge and grant of a security interest by Belmarken Holding N.V. in its shareholding in Cable Networks Netherlands Holding B.V. (the "INTEREST")., and (in certain circumstances) the transfer of voting rights attached to the Interest, as a part of a financing arrangement with The Toronto Dominion Bank (acting for itself and on behalf of a syndicate of banks) will be permitted;
(iv) UPC will not require or accept the payment of dividends, capital distributions or any other distributions by or on behalf of the Company which are violating Section 5.02;
(v) UPC and/or the company which shall, at any time, be the direct shareholder of the Company will acknowledge and accept the subordination referred to in Section 4.01(d)(ix);
(2) the General Services Agreement in form and substance reasonably satisfactory to the Agent;
(b) all contractual arrangements for implementation the Charter of the Project, at an aggregate cost not exceeding Company shall be in form and substance satisfactory to the estimated Project cost pursuant to Section 2.02 (Project Cost and Financial Plan) shall have been executed by the parties theretoAgent;
(c) the Co-Borrowers there shall have certified to IFC that each Co-Borrower is existing been obtained all required and in good standing relevant governmental, corporate, creditors', shareholders' and no amendment has been made to their respective Charter since August 29other licenses, 1997 with respect to PSMT and September 6, 2000 with respect to PSPH, approvals or if any such amendment was made, IFC has received a copy of each such Co-Borrower’s amended Charter and determined, in its reasonable judgment, that it is not inconsistent with the provisions of any Transaction Document and does not have or may not reasonably be expected to have a Material Adverse Effect;
(d) the IFC Security has been duly created and perfected as first ranking security interests in all assets and rights which are the subject of the Security Documents;
(e) the Co-Borrowers have obtained, and provided to IFC copies of, all Authorizations listed in Section (1) and Section (2) of Annex A (Co-Borrowers/Project Authorizations), and such other Authorizations not listed in those Sections that may become necessary consents for:
(i1) the Loan and financing by the Parallel Loan(s)Lenders under this Agreement;
(ii2) the carrying on of the business of the Co-Borrowers Company as it is presently carried on and is contemplated to be carried on;
(3) the carrying out of the Projects in accordance with the Agreed Base Case;
(4) the due execution and delivery of, and performance under, this Agreement, the Project Agreements, the Security and any documents in implementation of any thereof; and
(5) the remittance to the Agent and the Lenders or their respective assigns of all monies payable in respect of this Agreement and the Security;
(d) the Security, consisting of the following:
(i) mortgage rights over all of the Company's land, buildings and other immovable properties, including, without limitation, the real property used by or necessary in connection with the operation of the cable network of the Company;
(ii) mortgage rights over all the Company's leaseholds ("erfpacht") and rights of building ("recht van opstal");
(iii) the Project and the implementation a non-possessory pledge on all movable tangible assets of the Financial PlanCompany;
(iv) a non-disclosed pledge on all of the due Company's rights and proceeds under the General Business Agreements and the Project Agreements;
(v) a non-disclosed pledge on the Company's rights and proceeds under the insurance policies specified in Section 5.01(c)
(1) except for third party liability insurance;
(vi) a non-disclosed pledge on the Company's receivables;
(vii) a pledge on the Project Accounts;
(viii) a pledge on all shares in the capital of the Company, provided that the right to vote and receive dividends will be retained by the Company's shareholder until an Event of Default or Potential Event of Default has occurred and is continuing;
(ix) subordination of all loans provided to the Company by UPC or any of its Affiliates and Subsidiaries and subordination of all fees, costs and other amounts payable to UPC or any of its Affiliates and Subsidiaries, except that the management fees referred to in Section 5.04(g) will not be subordinated, subject to the provisions of the Project Support Agreement; shall have been created and perfected in a manner satisfactory to the Agent (acting reasonably).
(e) the Agent shall have received a legal opinion or opinions addressed to the Agent and the Initial Lender, in form and substance satisfactory to the Agent (acting reasonably), of counsel acceptable to the Agent (including, without limitation, opinion statements to the effect that:
(1) the Company is duly incorporated and validly existing under the laws of The Netherlands;
(2) the Company has the corporate power and authority to enter into this Agreement, the Project Agreements, the General Business Agreements and the Security and to exercise its rights and perform its obligations thereunder;
(3) the Company has taken all required corporate action in connection with the execution delivery, and performance of its obligations under the documents referred to in (2);
(4) the Company has validly executed and delivered the documents referred to in (2);
(5) the Company's obligations thereunder are the legal valid and binding obligations of the Company, enforceable in accordance with their terms;
(6) the execution, delivery, validity and enforceability of, delivery and performance by the Co-Borrowers Company of their obligations underthe documents referred to in (2) does not conflict with, this Agreement or result in a breach of any provision of its Charter or the laws of the Netherlands;
(7) no authorization, consent or approval of and no licence or order of any court, governmental entity or body of the Netherlands is required in connection with the execution and delivery of and the other Transaction Documents and any other performance by the Company of its obligations under the documents necessary or desirable referred to the implementation of any of those agreements or documents; andin (2) (except as shall have been obtained);
(v8) no filings and registrations are necessary (except as have been effected);
(9) each of the remittance to IFC or its assigns documents in Dollars respect of all monies payable with respect to the Transaction Documents; Security creates a valid, binding and all those Authorizations are enforceable security right as purported in full force and effectsuch documents;
(f) IFC has received the following legal opinions:
(i) PSPH’s counsel in Agent shall have been provided with the Philippines, concurred in by IFC’s counsel in the Philippines on the matters set out in Schedule 5 Part I;
(ii) PSMT’s counsel in California on the matters set out in Schedule 5 Part II; and
(iii) IFC’s counsel in New York on the matters set out in Schedule 5 Part IIIInsurance Report;
(g) IFC has received a certification from the Auditors Agent shall have been provided with the certificate referred to in Section 8.02;
(h) the Company shall have acquired legal or beneficial ownership of PSPH confirming thatthe KTE Assets, the Combivisie Assets and the shares of KTSB, free and clear of any mortgages, pledges, attachments or limited rights; except that it is acknowledged and accepted by the Agent that the Company (or KTSB, as at a date the case may be) may not earlier than sixty (60) days prior have acquired the ownership to the date of first Disbursement, PSPH is in compliance with the provisions of Section 6.01(c) (Affirmative Covenants) and containing a brief description of the systems and records in placecable networks as such;
(i) IFC has received copies of all insurance policies required UPC shall have fully paid up, or caused a Subsidiary to be obtained pursuant pay up, the share capital referred to Section 6.04 (Insurancein subsection(a)(1) and Annex B (Insurance Requirements) prior to the date of first Disbursement, and a certification of the Co-Borrowers’ insurers or insurance agents confirming that such policies are in full force and effect and all premiums then due and payable under those policies have been paidabove;
(j) IFC has received the fees specified in Section 3.07 (Fees) required to be paid before the date of the first Disbursement;
(k) if IFC so requires, IFC has received the reimbursement of all invoiced fees and expenses of IFC’s counsel as provided in Section 3.15(b)(ii) (Expenses) or confirmation that those fees and expenses Company shall have been paid directly to that counsel;
(l) IFC has received a copy of the authorization delivered to the Auditors referred to in Section 6.01(e) (Affirmative Covenants) together with Agent a confirmation from the Auditors that they shall provide IFC with all necessary original Financial Statements and other accounting information to be provided to IFC pursuant to the terms of this Agreement;
(m) IFC has received a Certificate of Incumbency and Authority for each of the Co-Borrowers;
(n) each Co-Borrower has delivered to IFC evidence, substantially notice in the form of Schedule 4 (Form of Service of Process Letter)SCHEDULE 6, of appointment of an agent for service of process pursuant requesting a Disbursement on February 20, 1998, to Section 8.03(d) (Applicable Law and Jurisdiction);
(o) repay in full the Co-Borrowers and IFC have agreed on the form of the Annual Monitoring Report;
(p) there shall be been made arrangements satisfactory to IFC, in its sole discretion, for installing and implementing the accounting and cost control systems and management information systems and books of account and other records, which together is capable of generating information which adequately reflect truly and fairly the financial condition of each of the Co-Borrowers Existing KTE Facility and the result of its respective operations in conformity with the Accounting Principles; and
(q) the Auditors have delivered to IFC a certification confirming that based on the Auditor’s valuation (performed on a cost basis), Co-Borrowers shall be in compliance with Section 6.01(j)(i) and (iii) after giving effect to the DisbursementBridge Loan.
Appears in 1 contract
Sources: Credit Facility Agreement (United Pan Europe Communications Nv)