Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid: (a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below: (i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and (ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause: (1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and (2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and (3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and (4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and (5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and (6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and (7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and (8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced; (b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance; (c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement; (d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness; (e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement; (f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place; (g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and (h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from (i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.
Appears in 6 contracts
Sources: Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement
Undertakings. The Beneficiary Member State undertakes4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in relation favour of each other Consenting Creditor that, subject to General Government Debtthe terms, until such time conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as all Financial Assistance has been fully reimbursed and all interest and additional amountsset forth in Schedule 3 (Consenting Creditors’ undertakings) provided that, if any, due under notwithstanding any other provision in this Agreement (including the Facility Specific Terms) have been fully paidAgreement:
(a) with no Consenting Creditor shall be required to waive any Defenses or be prohibited from taking any action to preserve the exception validity, existence or priority of those encumbrances enumerated any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in Subits sole discretion in the Adversary Proceedings, provided that if HSBC-paragraphs HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(a)(ii)(1c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to (a)(ii)(8) belowCFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to secure by mortgagethe Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, pledge for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and any guarantee or indemnity given in respect thereofthe Club Loan Agreement, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such securityrespectively; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited SFR Distribution to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) Notes Trustee to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts applied in accordance with ESA 95 principles the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and Eurostat guidance on securitisation operations conducted by Member States' governments; andabsolute discretion) determines that such action (or omission):
(7a) any encumbrance securing the Beneficiary Member State's obligations would be contrary to any central securities depository, such as Euroclear applicable law or Clearstream, given in the normal course of the Beneficiary Member State's businessregulation or might affect directly or indirectly its reputation; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;or
(b) would result in such Consenting Creditor incurring any Liability or waiving or releasing any legal or equitable rights, Claims, causes of action, indemnities, Defenses or remedies, except as expressly set forth in the Solicitation Plan, subject to utilise any opt- out rights with respect to releases and exculpations provided for therein and herein.
4.3 The Initial Consenting Creditors who are Creditor Plan Proponents are hereby authorised to enter into a separate agreement with HSBC-HK in the form set out in Schedule 11 (HSBC-HK Agreement).
4.4 The Consenting Creditors hereby agree that the Schedule of Excluded Parties (as defined in the Solicitation Plan) shall include all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable parties referred to in Schedule 12 (Excluded Release Parties) hereto, and notwithstanding anything to the contrary contained herein (including in Schedule 8 (Term Sheet)), any release granted by a Consenting Creditor under the Restructuring Documents shall not extend to such Financial Assistance;parties, except with respect to any discharge of contractual claims under the Existing Finance Documentation for principal, interest and other amounts due thereunder as may be necessary to give effect to the Court Supervised Arrangements. Without limiting the generality of the foregoing, any other Claims such Consenting Creditor may have against such parties arising out of or relating to the Club Loans or the Notes or enforcement thereof (including, without limitation, any claims arising out of or relating to the Undertakings), shall not be released.
4.5 Notwithstanding anything to the contrary herein, HSBC-HK shall not be obligated (including, without limitation under Clause 3.1 or Schedule 3 (Consenting Creditors’ undertakings)) to vote in favour of any Chapter 11 Plan or take a position in the Chapter 11 Proceedings in respect thereof.
4.6 As soon as reasonably practicable following the Backstop Deadline, the Information Agent shall calculate the Backstop Commitments of each Backstop Party (in reliance on the amounts confirmed by the Club Loan Agent and the Notes Trustee or, in the alternative, by the Majority Backstop Parties of the applicable Senior Claims as of the Backstop Deadline) immediately following the Backstop Deadline on the following basis and notify each Backstop Party of the same:
(a) the Backstop Claims of that Backstop Party as of the Backstop Deadline; divided by
(b) aggregate Backstop Claims of all Backstop Parties as of the Backstop Deadline; (c) to obtain and maintain US$150,000,000.
4.7 The Plan Administrator (as defined in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)Solicitation Plan), direct, unconditional, unsubordinated and general obligation or any other party who would be authorized to act on behalf of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present Plan Debtors or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State their successor entities in connection with this Agreement implementation of the Chapter 11 Plan, the Court Supervised Arrangement or any Pre-Funding AgreementRestructuring, shall be acceptable to the transactions contemplated herein or with Creditor Plan Proponents (as defined in the MoU being incorrectSolicitation Plan), inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance Plan Administrator or such other party or parties shall not be considered acceptable to the Creditor Plan Proponent unless the Plan Administrator or such other party or parties, as the case may be, have agreed to the terms of this Agreement(x) a budget or budgets for the Plan Debtors (which shall include all disbursements expected to be made by the Plan Debtors, whether expressly provided for under the Restructuring Documents or otherwise, for the periods prior to and after the Restructuring Effective Date), or (y) other arrangements governing the terms and conditions under which disbursements may be made by the Plan Administrator, such other parties and/or the Plan Debtors (including any Pre-Funding Agreement and all expenditures for counsel or any Facility Specific Terms or other advisors), in connection with each case, which shall be satisfactory to the transactions contemplated therein or Creditor Plan Proponents, in the MoU.their sole discretion.
Appears in 6 contracts
Sources: Restructuring Support Agreement, Restructuring Support Agreement, Restructuring Support Agreement
Undertakings. 4.1 The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as custodian's undertakings The Custodian undertakes that at all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including times during the Facility Specific Terms) have been fully paidTerm it will:
(a) (notice of default) give notice in writing to the Trustee and each Designated Rating Agency of it becoming aware of the occurrence of any Custodial Transfer Event;
(b) (compliance with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:law)
(i) maintain in effect all qualifications, consents, licenses, permits, approvals, exemptions, filings and registrations as may be required under any applicable law in order properly to perform or comply with its obligations under this Agreement;
(ii) comply with all Laws in connection with the provision of the Custodial Services where failure to do so would have a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in connection with the provision of the Custodial Services so that the Trustee does not personally or in its capacity as trustee of the Trust become liable to secure by mortgage, pledge or pay any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given Civil Penalty Payments.
(c) (Material Default) if a Material Default occurs in respect thereofto a Receivable, unless take all reasonable action to assist the Financial Assistance shall, at Servicer and the same time, share pari passu Trustee to enforce the relevant Receivable and pro rata the Receivable Rights;
(d) (Insurance Policies)
(i) act in such securityaccordance with the terms of any Mortgage Insurance Policies to the extent applicable to the Custodian; and
(ii) not do or omit to grant do anything which, or the omission of which, as the case may be, could be reasonably expected to any other creditor prejudicially affect or holder of limit its sovereign debt any priority over its obligations under this Agreement. The grant rights or the rights of the following encumbrances shall not constitute Trustee or the Servicer under or in respect of a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save Mortgage Insurance Policy to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated those rights relate to a Receivable and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessReceivable Rights;
(e) (notification) notify the Trustee, the Manager and the Servicer of any event which it reasonably believes is likely to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreementhave a Material Adverse Effect promptly after becoming aware of such event;
(f) (provide information and access on request) as soon as reasonably practicable after being requested so to pay do, provide information reasonably requested by the amount allocated by EFSF Trustee, the Manager or the Servicer, with respect to all matters relating to the Beneficiary Member State of any feesCustodial Services and upon reasonable notice and at reasonable times permit the Trustee, costs the ------------------------------------------------------------------------------ Page (9) Custodian Agreement ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ------------------------------------------------------------------------------ Manager or the Servicer to enter the Premises and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including inspect the Data Base in relation to each Relevant Trust and the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeRelevant Documents;
(g) not (Report Record of Movements) provide the Trustee and the Manager on the last Business Day of each week a copy of an extract from the Record of Movements applicable to enter into that week's movements of Relevant Documents;
(h) (comply with other obligations) comply with all its obligations under any Transaction Document to which it is a party;
(i) (pay taxes) subject to receiving payment from, or arrange being reimbursed by, the relevant Obligor or being indemnified by the Trustee, pay all Taxes that relate to the Custodial Services (without the prior written consent of EFSF) other than any transactions Tax on, or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal measured by reference to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes income of a short term investment as contemplated under Trust or the PSI LM Facility. Where any transaction Custodian) or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request where such consent no fewer than ten (10) Business Days prior Taxes are incurred due to the date upon which default or breach of duty by the Beneficiary Member State enters intoCustodian, pay those Taxes itself or proposes ensure those Taxes are paid;
(j) (not claim) not claim any Security Interest over any Asset;
(k) (comply with Supplementary Terms Notice) comply with any undertaking specified as an additional Custodian undertaking in a relevant Supplementary Terms Notice, including, without limitation, providing the Manager with any information referred to enter intoin that Supplementary Terms Notice;
(l) (insurances) ensure that the Premises are appropriately insured for fire and public risks, any legally binding offer, agreement or arrangement in relation to such transactionand that it has appropriate directors and officers insurance; and
(hm) more generally(Data Base) maintain the Data Base collected, held or stored by it in relation to indemnify each Relevant Trust and hold harmless EFSF on first demand from each Relevant Document and, subject to all applicable laws, provide the Trustee with access to the Data Base upon reasonable request and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromduring normal business hours.
4.2 Material adverse effect
(ia) In performing the Custodial Services the Custodian shall have regard to whether what it does, or does not do, will have any information which Material Adverse Effect.
(b) The Custodian may ask the Trustee or the Manager if any action or inaction on its part is received from reasonably likely to, or will, have a Material Adverse Effect.
(c) The Custodian may rely upon any statement by the Beneficiary Member State in connection with this Agreement Trustee or the Manager that any Pre-Funding Agreementaction or inaction by the Custodian is reasonably likely to, or will, have a Material Adverse Effect.
(d) Subject to paragraph (a), the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any Custodian shall not be liable for a breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, or be liable under any Pre-Funding Agreement indemnity, in relation to any action or any Facility Specific Terms inaction on its part, where it has been notified by the Trustee or in connection with the transactions contemplated therein Manager that the action or in inaction is not reasonably likely to, or will not have a Material Adverse Effect, unless the MoU.notification was caused by the fraud, negligence or wilful default of the Custodian.
Appears in 6 contracts
Sources: Custodian Agreement (Crusade Management LTD), Custodian Agreement (Crusade Management LTD), Custodian Agreement (Crusade Management LTD)
Undertakings. The Beneficiary Member State undertakes4.1 Subject to Clause 4.2, each Consenting Creditor irrevocably undertakes in relation favour of each of other Consenting Creditor that, subject to General Government Debtthe terms, until such time conditions and limitations set forth herein, it will comply with the Consenting Creditors’ undertakings as all Financial Assistance has been fully reimbursed and all interest and additional amountsset forth in Schedule 3 (Consenting Creditors’ undertakingsUndertakings) provided that, if anynotwithstanding any other provision in this Agreement, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) with no Consenting Creditor shall be required to refrainwaive any Defenses or be prohibited from taking any action to preserve the exception validity, existence or priority of those encumbrances enumerated any of its rights and Claims (including seeking acceptance of any Claims for fees, costs and expenses under the Existing Finance Documentation as Accepted Claims) against any obligor of the Club Loans and/or Notes. In (as the case may be);
(b) HSBC-HK may, without limitation, seek to take, refrain from taking or cause to be taken or not taken any action it deems necessary or desirable in Subits sole discretion in the Adversary Proceedings, provided that if HSBC-paragraphs HK takes any such action that adversely affects implementation of the Restructuring in the manner set forth herein, the Consenting Creditors may, by Special Majority Consent, terminate this Agreement as to HSBC-HK without further obligation hereunder on the part of HSBC-HK;
(a)(ii)(1a) (c) in addition, the Consenting Creditors who are members of the Ad Hoc Group agree to use reasonable efforts to seek the approval of the Bankruptcy Court (which may be pursuant to a Chapter 11 Plan) to (a)(ii)(8) belowCFG Peru taking all corporate governance actions consistent with Peruvian and Singapore law to make:
(i) an Interim Distribution that is not less than US$75 million to secure by mortgagethe Notes Trustee and the Club Loan Agent in accordance with the Agreed Participation (without, pledge for the avoidance of doubt, any Indebtedness being reduced on account of any Interim Distributions or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness SFR Distributions that have not occurred at that time) to be applied in accordance with the Existing Indenture and any guarantee or indemnity given in respect thereofthe Club Loan Agreement, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such securityrespectively; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited SFR Distribution to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) Notes Trustee to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts applied in accordance with ESA 95 principles the Existing Indenture.
4.2 Nothing in this Agreement shall require any Consenting Creditor to take, or omit to take, any action if such Consenting Creditor (in its sole and Eurostat guidance on securitisation operations conducted by Member States' governments; andabsolute discretion) determines that such action (or omission):
(7a) any encumbrance securing the Beneficiary Member State's obligations would be contrary to any central securities depository, such as Euroclear applicable law or Clearstream, given in the normal course of the Beneficiary Member State's businessregulation or might affect directly or indirectly its reputation; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;or
(b) to utilise all Financial Assistance consistently with the Decision as would result in force at the relevant time and in accordance with the MoU as the same has been modified such Consenting Creditor incurring any Liability other thanor waiving or supplemented as at the date releasing any legal or equitable rights, Claims, causes of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claimindemnities, demandDefenses or remedies, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions except as expressly contemplated therein or by thisset forth in the MoU.Solicitation Plan, subject to any opt-out rights with respect to releases and exculpations provided for therein and herein.
Appears in 5 contracts
Sources: Restructuring Support Agreement, Restructuring Support Agreement, Restructuring Support Agreement
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) a)(ii)10 below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million; and
(9) any encumbrance granted by an agency of the Beneficiary Member State (other than the Debt Agency) to secure indebtedness incurred by it in the ordinary course of its business to finance the ordinary and customary activities of such agency and provided that the proceeds of such financing are not on-lent or otherwise made available to the central government; and
(10) any encumbrance (if any) granted under or resulting from any collateralised credit line or repo facility entered into by the Debt Agency for precautionary or liquidity management purposes. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(bi) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(ii) to utilise the EFSF Debt Securities received under the Bank Recapitalisation Facility only for the purpose of financing the recapitalisation of financial institutions in Spain by providing financing to FROB to subscribe Bank Capital Instruments issued by the financial institutions specified in the MoU in accordance with this Agreement and the MoU and not to sell, transfer, grant security over or otherwise deal with these EFSF Debt Securities other than in accordance with this Agreement and the MoU provided that prior to funds being disbursed to FROB or contributed to FROB by the Beneficiary Member State, EFSF shall have confirmed that it is satisfied in relation to the legal instruments and documentation between the Beneficiary Member State and FROB setting out the legal basis of such contribution of funds to FROB by the Beneficiary Member State;
(iii) to procure that FROB shall not use EFSF Debt Securities delivered to FROB under the Bank Recapitalisation Facility to subscribe for Bank Capital Instruments in a financial institution without the prior written approval of EFSF including confirmation by EFSF that it is satisfied in relation to the legal mechanism, instruments and documentation between FROB and the relevant financial institution setting out the terms on which FROB subscribes or pre-subscribes for Bank Capital Instruments in such financial institution;
(iv) to procure that FROB shall not subscribe for Bank Capital Instruments in a financial institution using EFSF Debt Securities as consideration unless FROB and the financial institution have entered into a Pre- Subscription or Subscription Agreement substantially in the form agreed between EFSF, the Beneficiary Member State and FROB; and
(v) to comply with the additional undertakings set out in Schedule 1 (Bank Recapitalisation Facility: Facility Specific Terms);
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF FROB to comply with its their respective obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.
Appears in 4 contracts
Sources: Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement, Master Financial Assistance Facility Agreement
Undertakings. 8.1 The Beneficiary Member State undertakesBorrower undertakes to the Lender to comply with the following provisions of this Clause 8 at all times during the Security Period, except as the Lender may otherwise permit:
8.1.1 the Borrower will (and will procure that each Group Company will) obtain, effect and keep effective all Authorisations which may from time to time be required (i) in relation connection with the Charged Assets under any law of a Relevant Jurisdiction (i) to General Government Debtenable it to perform its obligations under the Finance Documents including but not limited to ensure that the Finance Documents remain valid and enforceable and to continue to own the Charged Assets) and (ii) to conduct its business where failure to do so has or is reasonably likely to have a material adverse effect on the business, until such time as condition of operations of the Borrower;
8.1.2 subject to Legal Reservation, Perfection Requirements and Permitted Security, the Borrower will (and to the extent any Group Company has charged its assets pursuant to a Security Document, the Borrower shall procure that this Group Company shall) own the Charged Assets free from all Financial Assistance Security Interests and other interests and rights of every kind, except for those created by the Security Documents; [***] Certain information has been fully reimbursed omitted and filed separately with the Commission. Confidential treatment has been requested with respect to omitted portions.
8.1.3 except for a sale, assignment, transfer or disposal which constitutes a Permitted Disposal or a Permitted Transaction, the Borrower will not (and shall procure that each Group Company will not) sell, assign, transfer or otherwise dispose of the Charged Assets, any of its material assets or any share therein and shall give immediate notice to the Lender of any judicial process or encumbrance affecting the Charged Assets;
8.1.4 the Borrower shall promptly obtain, comply with and do all interest that is necessary to maintain in full force and additional amountseffect, and, if anyrequested by the Lender, due supply copies to the Lender of, any Authorisation required under this Agreement any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document;
8.1.5 the Borrower shall not (and shall ensure that no Group Company will) incur or allow to remain outstanding any Financial Indebtedness other than any Permitted Financial Indebtedness;
8.1.6 the Borrower shall not (and shall ensure that no other Group Company will) create or permit to subsist any Security Interest over any of its assets;
8.1.7 the Borrower shall not (and shall ensure that no other Group Company will):
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are leased to or intended to be re-acquired by any Group Company; or
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
8.1.8 Clauses 8.1.6 and 8.1.7 do not apply to:
(i) any Permitted Disposal;
(ii) any Permitted Transaction;
(iii) any Permitted Financial Indebtedness; and
(iv) any Permitted Security;
8.1.9 the Borrower shall procure that within twelve weeks after the first Drawdown Date: [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to omitted portions.
(i) it shall convene a shareholders’ meeting in order to grant the Warrants to Kreos Capital IV Limited;
(ii) the resolutions of the shareholders of the Borrower shall be filed with the clerk of the relevant commercial court in accordance with article 556 of the Belgian Companies Code;
8.1.10 the Borrower shall pay or discharge all fees associated with registering of any Security Interest granted in connection with the Loans;
8.1.11 the Borrower shall at the request of the Lender from time to time execute and deliver such further documents creating Security Interests in favour of the Lender over such assets and in such form as the Lender may reasonably require in its discretion from time to time to:
(i) secure all monies, obligations and liabilities of the Borrower and/or any Group Company to the Lender;
(ii) facilitate the realisation of the Charged Assets; or
(iii) exercise the powers conferred on the Lender or a receiver appointed under any Security Document, from time to time, provided that the Lender shall not be able to require any Group Company to create security over Excluded Assets;
8.1.12 [A] Except as provided under (B), (C) and (D) below, no member of the Group shall:
(i) guarantee or otherwise be liable for debt or other obligations of a Ring Fenced Company; or
(ii) transfer any assets (including cash) to the Facility Specific Terms) have been fully paidRing Fenced Company or enter into any contract with the Ring Fenced Company. [B] A member of the Group may however transfer assets to the Ring Fenced Company or enter into a contract with the Ring Fenced Company:
(a) with to incorporate the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedRing Fenced Company;
(b) to utilise all Financial Assistance consistently with allow the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable Ring Fenced Company to such Financial Assistancerun its day-to-day business operations;
(c) in connection with the provision of management services by the Group Company to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding AgreementRing Fenced Company;
(d) to ensure support the Ring Fenced Company to develop, manufacture, commercialise or market its Intellectual Property; provided that at the aggregate value of all times services [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to omitted portions. or assets provided by the Group to all Financial Assistance made available Ring-fenced Companies and which are not reimbursed to the Beneficiary Member State under Group shall not exceed EUR [***] per annum and provided that the Facilities shall constitute an unsecured (save Group does not incorporate more than two Ring Fenced Company during the life of the Loan Agreement. [C] A member of the Group may transfer assets to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present Ring Fenced Company or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or contract with the MoU being incorrectRing Fenced Company provided such transfer or contract constitutes a Permitted Disposal, inaccurate Permitted Financial Indebtedness, Permitted Transaction or misleading; (ii) Permitted Security. [D] A Ring Fenced Company may transfer some or all of its assets to a Group Company for nil consideration and without assuming any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.liabilities.
Appears in 3 contracts
Sources: Loan Agreement, Loan Agreement (TiGenix NV), Loan Agreement (TiGenix NV)
Undertakings. 3.1 The Beneficiary Member State undertakesGuarantor undertakes that it will not issue any Tier 1 Securities ranking senior to its obligations under this Subordinated Guarantee or enter into any support agreement or give any guarantee in respect of any Tier 1 Securities issued by any Subsidiary or other entity if such support agreement or guarantee would rank senior to this Subordinated Guarantee unless this Subordinated Guarantee is changed to give the Holders such rights and entitlements as are contained in or attached to such securities or such other support agreement or guarantee so that this Subordinated Guarantee ranks pari passu with, and contains substantially equivalent rights of priority as to payment on, any Tier 1 Securities or such other support agreement or guarantee.
3.2 The Guarantor undertakes that, in relation the event that any Distribution is not paid to General Government DebtHolders in accordance with the rights attaching to the Preferred Securities in accordance with the Partnership Agreement, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paidGuarantor will not:
(a) with declare or pay any distribution or dividend and, where applicable, will procure that no distribution or dividend is declared or paid on any Junior Share Capital, until the exception then applicable Dividend Stopper Period has expired; or
(b) (if permitted) repurchase or redeem Parity Securities or Junior Share Capital until the then applicable Dividend Stopper Period has expired.
3.3 The Guarantor undertakes that, so long as any of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) belowthe Preferred Securities is outstanding:
(ia) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shallGuarantor is itself being wound up, at it will not permit, or take any action that would or might cause, the same timeliquidation, share pari passu and pro rata in such securitydissolution or winding-up of the Issuer (or the General Partner if the Guarantor itself is not the general partner) otherwise than with the prior approval of the Regulator (if then required); and
(iib) not to grant to any other creditor the General Partner will at all times be either the Guarantor itself or holder of its sovereign debt any priority over its obligations under this Agreement. The grant a directly or indirectly wholly- owned Subsidiary of the following encumbrances shall not constitute Guarantor, unless, in the case of (a) or (b), otherwise approved by a breach simple majority of this Clausethe Holders by vote or in writing.
3.4 If a Capital Deficiency Event occurs and is continuing, pursuant to which the General Partner has exercised its discretion to cause a Preferred Securities Substitution or the Regulator has required a Preferred Securities Substitution to take place, the Guarantor undertakes that it will take all reasonable steps to:
(1a) encumbrances upon any property incurred to secure the purchase price of such property allot, issue and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension deliver Substituted Preference Shares in satisfaction of the original secured financing; and
(2) encumbrances on commercial goods arising rights of the Holders in the course of ordinary commercial transactions (circumstances and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of manner described in the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed Limited Partnership Agreement and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedherein;
(b) apply for the Substituted Preference Shares , or, as applicable, the securities issued by a finance company and backed by Substituted Preference Shares, to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;be listed on a stock exchange; and
(c) pay any taxes or capital duties or stamp duties payable in Ireland arising on the allotment and issue of such Substituted Preference Shares. The Guarantor undertakes that as soon as practicable after a Capital Deficiency Event, it will give, or will procure that the General Partner gives, written notice to obtain the Holders enclosing a Preferred Securities Substitution Confirmation which each Holder will be required to complete. The form of such Preferred Securities Substitution Confirmation shall also be made available at the offices of each Paying and Transfer Agent. The Guarantor undertakes that following such Preferred Securities Substitution, the Substituted Preference Shares allotted will rank for any dividend from the immediately preceding Distribution Payment Date but the Holders will not otherwise have any entitlement to any accrued Distributions or any other payment on the Preferred Securities.
3.5 The Guarantor will procure that it will maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to whilst the Beneficiary Preferred Securities are outstanding (a) whilst the Preferred Securities are listed on Eurolist by Euronext Amsterdam and the rules of such Stock Exchange so require, a Paying and Transfer Agent in The Netherlands, (b) a Registrar having its specified office outside the United Kingdom and (c) a Paying and Transfer Agent having a specified office in a European Union Member State under the Facilities shall constitute an unsecured (save if available) that will not be obliged to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present withhold or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF deduct tax pursuant to this Clauseany law implementing or complying with, the Beneficiary Member State must notify EFSF of the details of the proposed transaction or introduced in order to request such consent no fewer than ten (10) Business Days prior conform to Council Directive 2003/48/EC on the date upon which taxation of savings income in the Beneficiary Member State enters intoform of interest payments or any other Directive of the European Community on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26th -27th November, 2000 or any law implementing or complying with, or proposes introduced in order to enter intoconform to, any legally binding offer, agreement or arrangement in relation to such transaction; andDirective.
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or 3.6 The Guarantor undertakes that in the MoU.event that on a Distribution Payment Date the Relevant Proportion of a Distribution is paid it will only declare and pay (or make a payment under a guarantee in respect of) an amount not exceeding the Relevant Proportion of any distribution or dividend (and, where applicable, will procure than an amount not exceeding the Relevant Proportion of any distribution or dividend is declared and paid) on any Parity Security for the applicable Dividend Stopper Period.
Appears in 3 contracts
Sources: Preferred Securities Agreement, Preferred Securities Agreement, Preferred Securities Agreement
Undertakings. The Beneficiary Member State undertakes, undertakings in relation to General Government Debt, until such time this Clause 17 remain in force from the date of this Agreement for as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due long as any Commitment is in force or any amount is outstanding under this Agreement (including Agreement. The Borrower shall, save with the Facility Specific Terms) have been fully paid:prior approval of the Majority Lenders,
(a) not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class or type of equity share capital carrying any rights which are more favourable than such rights attaching to the exception of those encumbrances enumerated Ordinary Shares, but so that nothing in Sub-paragraphs this paragraph (a)(ii)(1a) to (a)(ii)(8) belowshall prevent:
(i) not to secure by mortgageany consolidation, pledge reclassification or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless subdivision of the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; andOrdinary Shares;
(ii) any modification of such rights which is not, in the determination in its absolute discretion of an independent financial adviser (pre-approved by the Majority Lenders, such approval not unreasonably to grant be withheld), prejudicial to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant the interests of the following encumbrances shall not constitute a breach of this Clause:Lenders;
(1iii) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited alteration to the original property covered thereby and which secures any renewal or extension articles of association of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties Borrower made in connection with a project if the providing entity for such financing expressly agrees to look matters described in this Clause 17 to the properties financed extent permitted under this Clause 18 or which is supplemental or incidental to any of the foregoing (including any amendment made to enable or facilitate procedures relating to such matters and any amendment dealing with the rights and obligations of holders of Securities, including Ordinary Shares, dealt with under such procedures);
(iv) any issue of equity share capital where the issue of such equity share capital results, or would, but for the provisions of Clause 12.4 (Procedure for exercise of Conversion Right) relating to roundings, otherwise result in an adjustment to, or a consideration with respect to the determination of, the Conversion Price;
(v) any issue of equity share capital or modification of rights attaching to the Ordinary Shares, where prior thereto the Borrower shall have instructed an independent financial adviser to determine in its absolute discretion what (if any) adjustments should be made to, or considerations should be made with respect to the determination of, the Conversion Price as being fair and reasonable to take account thereof and such independent financial adviser shall have determined in its absolute discretion either that no adjustment or consideration is required or that an adjustment to or consideration in respect of the determination of the Conversion Price is required and, if so, the new Conversion Price as a result thereof and the revenues basis upon which such adjustment or consideration in respect of the determination is to be generated by made and, in any such case, the operation of, date on which the adjustment or loss consideration in respect of the determination shall take effect (and so that the adjustment or damage to, such properties as consideration in respect of the principal source of repayment for the moneys advanceddetermination shall be made and shall take effect accordingly);
(b) not make any issue, grant or distribution or take or omit to utilise all Financial Assistance consistently with take any other action if the Decision effect thereof would be that, on the exercise of Conversion Rights, Ordinary Shares could not, under any applicable law then in effect, be legally issued as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistancefully paid;
(c) not reduce its issued share capital or any uncalled liability in respect thereof, or any non-distributable reserves, except:
(i) pursuant to obtain the terms of issue of the relevant share capital;
(ii) by means of a purchase or redemption of share capital of the Borrower to the extent, in any such case, permitted by applicable law;
(iii) where the reduction does not involve any distribution of assets;
(iv) solely in relation to a change in the currency in which the nominal value of the Ordinary Shares is expressed;
(v) to create distributable reserves;
(vi) by way of transfer to reserves as permitted under applicable law;
(vii) where the reduction is permitted by applicable law and maintain an independent financial adviser, acting as expert and in full force its absolute discretion, advises that the interests of the Lenders will not be materially prejudiced by such reduction;
(viii) where the reduction is permitted by applicable law and effect all authorisations necessary results in an adjustment to, or a consideration with respect to the determination of, the Conversion Price or is otherwise taken into account for the purposes of determining whether such an adjustment or consideration with respect to the determination should be made; or
(ix) provided that, without prejudice to the other provisions of this Agreement, the Borrower may exercise such rights as it may from time to time be entitled pursuant to applicable law to purchase, redeem or buy back its Ordinary Shares and HFSF to comply with its obligations under this Agreement (including any depositary or other receipts or certificates representing Ordinary Shares without the Facility Specific Terms) and each Pre-Funding Agreementconsent of any Lender;
(d) to ensure that at all times all Financial Assistance made available provide to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i))Lenders, direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer later than ten (10) 5 Business Days prior to the date upon which Closing Date, all of the Beneficiary Member State enters into, documents and evidence referred to in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Lenders (acting reasonably) provided that the conditions may be waived by the Lenders in whole or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionpart; and
(he) more generallypay and discharge all Taxes due and payable by it prior to the accrual of any fine or penalty for late payment, unless (and only to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereofthe extent that) incurred or suffered by EFSF and which result from
(i) any information which payment of those Taxes is received from the Beneficiary Member State being contested in connection with this Agreement or any Pre-Funding Agreementgood faith, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of adequate reserves are being maintained for those Taxes and the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or costs required to contest them (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into the payment can be lawfully withheld and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.(iv) failure to pay those Taxes is not reasonably likely to have a material adverse effect.
Appears in 2 contracts
Sources: Fixed Rate Convertible Shareholder Loan Facility, Fixed Rate Convertible Shareholder Loan Facility
Undertakings. The Beneficiary Member State undertakesSo long as any amount remains unpaid in respect of principal, interest or otherwise hereunder or any Bank is under any obligation to make or maintain its participation in the Facilities or any part thereof (unless the Agent acting on the instructions of the Majority Banks otherwise agrees), each Borrower undertakes in relation to General Government Debtitself and the Parent undertakes in relation to (as relevant) each Group Company, until such time Guarantor, and Material Subsidiary (as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement referred to in sub-clauses (including the Facility Specific Termsa) have been fully paidto (o) (inclusive) below that:
(a) with the exception NEGATIVE PLEDGE: save for Permitted Encumbrances, no Group Company will grant or permit to subsist any Encumbrance over all or any of those encumbrances enumerated in Sub-paragraphs its property, undertaking, assets, or revenues (a)(ii)(1whether present or future);
(b) DISPOSALS: it will not, and will procure that no Group Company will, sell, transfer, lend, dispose of or otherwise cease to exercise direct control over (a)(ii)(8such transactions being hereunder referred to as "disposals") belowits present or future undertaking, assets or revenues, whether by one or a series of transactions related or not, except for:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own disposals of assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at ordinary course of the same time, share pari passu and pro rata in such security; andrelevant company's trading on an arm's length basis;
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given cash in the normal ordinary course of the Beneficiary Member Staterelevant company's business; and
(8) any encumbrance securing business on an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedarm's length basis;
(biii) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified payments made by it under this agreement or supplemented as at the date of the Request for Funds applicable to such Financial Assistanceunder any other Borrowings permitted under this agreement;
(civ) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply disposals with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSFthe Majority Banks;
(v) disposals of assets whether by one or a series of transactions related or not the book value or consideration payable (whichever is the greater) in respect of which does not exceed (Pounds)10,000,000 (or its equivalent in other currencies) in respect of any transactions one disposal or arrangements which when aggregated with all other such disposals in any one calendar year does not exceed (Pounds)20,000,000 (or its equivalent in other currencies);
(vi) payments made by it in respect of the Acquisition;
(vii) disposals from any Group Company to any Obligor;
(viii) disposals from any non-Obligor to any non-Obligor;
(ix) disposals of surplus assets at market value and on an arm's length basis;
(x) disposals of assets in exchange for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes other assets of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.comparable value;
Appears in 2 contracts
Sources: Facilities Agreement (Rose Acquisition Corp), Facilities Agreement (Rose Acquisition Corp)
Undertakings. The Beneficiary Member State undertakes, 2.1 No Obligor shall engage in relation any negotiations or transactions to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including be entered into for the Facility Specific Terms) have been fully paid:
(a) purpose of financing of any working capital needs with any institution without first notifying the exception of those encumbrances enumerated Agent sufficiently in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant advance of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property planned transaction and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided ensuring that the properties Agent has the right to which match the best offer received by any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise Obligor from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred institutions in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless at least 60% of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF working capital needs of the details of the proposed transaction in order to request such consent no fewer Borrower’s Group.
2.2 Other than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein herein or as provided in paragraph 2.1 above, no Obligor shall engage in any negotiations or transactions to be entered into for the purpose of refinancing the Financial Indebtedness in respect of the Finance Documents, Bank Handlowy Facility Documents and BZWBK Facility Documents, or incurring any Financial Indebtedness to finance any other purposes, in each case where such refinancing of Financial Indebtedness is intended to be obtained from commercial banks, without first notifying the Agent sufficiently in advance of the planned transaction and ensuring that the Agent has the right to: (i) file the first offer in respect of such financing or refinancing and (ii) match the best offer in respect of such financing or refinancing received from other institutions.
2.3 The parties shall cooperate in good faith and do all acts and things reasonably necessary or desirable in order to release and replace the Existing Security (and if necessary the Guarantors’ grant of their obligations), consistent with the New Indenture and this letter.
2.4 The parties shall use their best efforts to execute the amended and restated agreement reflecting the provisions of this letter agreement as soon as reasonably possible after the final execution of the New Indenture, and in any case by 31 January 2010. The validity of the foregoing waivers and agreements in respect of the Facility Agreement and the Intercreditor Agreement shall not be affected whether or not such an amendment and restatement is entered into, provided that (a) in the MoU.event that the New Bonds are not issued prior to or on 31 January 2010 the foregoing waivers and agreements shall cease to be valid; and (b) in the event that Borrower notifies the Agent prior to 31 January 2010 that the New Bonds will not be issued then the foregoing waivers and agreements shall cease to be valid from the date that the Borrower notifies the Agent.
Appears in 2 contracts
Sources: Facility Agreement (Central European Distribution Corp), Facility Agreement (Central European Distribution Corp)
Undertakings. The Beneficiary Member State undertakes(1) Subject as provided in clause 7 (in the case of paragraphs (a) to (c) below) and clause 8 (in the case of paragraphs (d) to (f) below), the Escrow Trustee hereby undertakes in relation to General Government Debtfavour of the Supervisors, until such time each Admitted Scheme Creditor (including, for the avoidance of doubt, the Eurobond Trustee and BoNY upon their Scheme Claims being Admitted) and each Designated Recipient as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paidfollows:
(a) with against receipt of the exception First Initial Distribution Notice under the Corp Scheme, to direct (and it hereby does direct) the Distribution Agent to transfer on behalf of those encumbrances enumerated the Admitted Known Creditors named in Sub-paragraphs (a)(ii)(1) the First Initial Distribution Notice from the Admitted Known Corp Scheme Creditors Escrow Fund such amounts and securities as are equal to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given the Distribution Entitlement in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are Admitted Known Claims the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined First Initial Distribution Notice to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given Admitted Scheme Creditors named in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedFirst Initial Distribution Notice;
(b) against receipt of any Distribution Notice (other than the First Initial Distribution Notice) under the Corp Scheme, to utilise all Financial Assistance consistently with direct (and it hereby does direct) the Decision as in force at Distribution Agent to transfer on behalf of the Scheme Creditors from the relevant time Corp Escrow Accounts such amounts and securities as are specified in accordance with the MoU as Distribution Notice to the same has been modified or supplemented as at Admitted Scheme Creditors named in the date of the Request for Funds applicable to such Financial AssistanceDistribution Notice;
(c) against receipt of a Transfer Notice relating to obtain any Corp Scheme Consideration, to direct (and maintain in full force and effect all authorisations necessary for it and HFSF hereby does direct) the Distribution Agent to comply with its obligations under this Agreement (including take the Facility Specific Terms) and each Pre-Funding Agreementaction required by that Transfer Notice;
(d) against receipt of the First Initial Distribution Notice under the plc Scheme, to ensure that at all times all Financial Assistance made available direct (and it hereby does direct) the Distribution Agent to transfer on behalf of the Admitted Known Creditors named in the First Initial Distribution Notice from the Admitted Known plc Scheme Creditors Escrow Fund such amounts and securities as are equal to the Beneficiary Member State under Distribution Entitlement in respect of the Facilities shall constitute an unsecured (save Admitted Known Claims the subject of the First Initial Distribution Notice to the extent of any security provided Admitted Scheme Creditors named in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessFirst Initial Distribution Notice;
(e) against receipt of any Distribution Notice (other than the First Initial Distribution Notice) under the plc Scheme, to comply direct (and it hereby does direct) the Distribution Agent to transfer on behalf of the Scheme Creditors from the relevant plc Escrow Accounts such amounts and securities as are specified in all respects with applicable laws which might affect its ability the Distribution Notice to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;Admitted Scheme Creditors named in the Distribution Notice; and
(f) against receipt of a Transfer Notice relating to pay any plc Scheme Consideration, to direct (and it hereby does direct) the amount allocated Distribution Agent to take the action required by EFSF that Transfer Notice. Each of the Escrow Trustee and the Distribution Agent agrees that it shall have no discretion in the making or withholding of any Distribution or credit or transfer required by a Transfer Notice, or portion thereof, and undertakes at all times to comply with the terms of Distribution Notices and Transfer Notices and any other directions given to it by the Supervisors and, in the case of the Distribution Agent, the Escrow Trustee. Except where defined herein, capitalised terms used in paragraphs (a) to (c) of this sub-clause (1) have the meanings given to them in the Corp Scheme and capitalised terms used in paragraphs (d) to (f) of this sub-clause (1) have the meanings given to them in the plc Scheme.
(2) Each of the Escrow Trustee and the Distribution Agent undertakes that it will take any and all action required by the Supervisors of the relevant Scheme in order to give effect to the Beneficiary Member State provisions of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;that Scheme.
(g3) not to enter into or arrange Subject as provided in sub-clause (without 2) above, each of the Escrow Trustee and the Distribution Agent undertakes that, save with the prior written consent of EFSF) the Supervisors of the relevant Scheme, it will not take any transactions or arrangements for action affecting the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent trust property or any special purpose entity whether at a price equal to, above part of it except where necessary to give effect to either Scheme or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify required by clause 7 and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance 8 of this Agreement, any Pre.
(4) Any Distribution or transfer made in accordance with sub-Funding Agreement clause (1) above shall only be made following receipt by the Escrow Trustee and the Distribution Agent of a duly signed Distribution Notice or any Facility Specific Terms or Transfer Notice from the Supervisors and then only in connection accordance with the transactions contemplated therein terms of that Distribution Notice or Transfer Notice. Each Distribution Notice and Transfer Notice shall constitute deemed directions from the Escrow Trustee to the Distribution Agent to make the relevant Distribution or transfer.
(5) The Escrow Trustee hereby undertakes in favour of the Supervisors and the other parties to this Agreement that it will act honestly and in good faith and will exercise the diligence expected of a reasonably prudent trustee and custodian in the MoU.fulfilment and/or exercise of its duties and obligations under this Agreement.
(6) The Distribution Agent hereby undertakes in favour of the Supervisors and the other parties to this Agreement that it will act honestly and in good faith and will exercise the diligence expected of a reasonably prudent custodian and agent in comparable circumstances in the fulfilment and/or exercise of its duties and obligations under this Agreement.
(7) Bondholder Communications hereby undertakes in favour of the Supervisors, the Eurobond Trustee, BoNY and the other parties to this Agreement that it will act honestly and in good faith and will exercise the diligence of a reasonably prudent expert in comparable circumstances in the fulfilment and/or exercise of its duties and obligations under this Agreement.
(8) Conditional upon the proposed reduction in its share capital and repayment of capital in specie being effected as contemplated by the Scheme Implementation Deed, Ancrane hereby undertakes in favour of each of the other parties to this Agreement that it shall execute the Ancrane Direction Letter on or before 17th April, 2003. Subject to Ancrane executing the Ancrane Direction Letter, in accordance with the proposed direction set out in paragraph 4(b) of that letter, each of the Eurobond Trustee, BoNY, the Escrow Trustee and the Supervisors hereby direct the Distribution Agent to pay all Corp and plc Scheme Consideration to which Ancrane would otherwise have been entitled through its Scheme Claim and as a Bondholder to plc.
Appears in 2 contracts
Sources: Escrow and Distribution Agreement (Marconi PLC), Escrow and Distribution Agreement (Marconi Corp PLC)
Undertakings. 12.1 The Beneficiary Member State undertakesCompany irrevocably undertakes with the Lender that, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under from the date of this Agreement (including the Facility Specific Terms) have been fully paidand for so long as any amount is outstanding under any Loan, it shall:
(a) obtain, maintain and comply in all material respects with the exception terms of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) all material authorisations, approvals, licences, exemptions, notarisations and consents required to (a)(ii)(8) below:
(i) not enable it lawfully to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness enter into and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over perform its obligations under this Agreement. The grant Agreement and the Warrant Deed (including, without limitation, to issue Common Shares in full satisfaction of the following encumbrances shall not constitute a breach exercise of this Clause:
(1all Warrants) encumbrances upon any property incurred or to secure ensure the purchase price of such property and any renewal legality, validity, enforceability or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising admissibility in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing evidence of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) in England and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedWales;
(b) to utilise all Financial Assistance consistently with promptly inform the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date Lender of the Request for Funds applicable occurrence of any Event of Default and, upon receipt of a written request to that effect from the Lender, confirm to the Lender that, save as previously notified to the Lender or as notified in that confirmation, no such Financial AssistanceEvent of Default has occurred;
(c) use all reasonable efforts to obtain and maintain in full force and effect all authorisations necessary for it and HFSF the Admission of the Common Shares to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementtrading on CSE;
(d) to ensure that at comply with, and file in a timely manner all times material reports and other documents required of it under all Financial Assistance made available to Applicable Laws, including the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i))CSE Trading Rules, direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations not take any action or file any document to terminate or suspend the admission of the Beneficiary Member State arising from its present or future Relevant IndebtednessCommon Shares to trading on CSE;
(e) take all steps reasonably necessary to comply in all respects with applicable laws which might affect preserve and continue the material licences, permits and other authorities required by the Company’s Group to carry on its ability business (as such business and as such material licences, permits and other authorities may be constituted from time to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreementtime);
(f) to pay immediately notify the amount allocated Lender upon its becoming aware of the issuance by EFSF to the Beneficiary Member State CSE of any fees, costs and expenses, including in particular Issuance Costs, breakage notice relating to a potential or termination costs, and Cost actual suspension or de-listing of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeCommon Shares from trading on CSE;
(g) not to enter into or arrange (without only use the prior written consent proceeds of EFSF) any transactions or arrangements Loan for activities in the acquisition, purchase or exchange ordinary course of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionits business; and
(h) more generallynot enter into Restricted Activity or financing arrangements, either for equity or debt, (other than with the Lender) without offering the Lender the right of first refusal to indemnify enter into such other financing arrangements on materially the same bona fide terms as offered by a third party. For the avoidance of doubt such financing arrangements shall include royalty financing and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromofftake financing.
(i) Not issue any information which is received from of the Beneficiary Member State in connection 10,000,000 preferred shares that form part of the Company’s authorised share capital but have not yet been issued;
(j) procure that the Company nor any member of the Company’s Group shall, without the prior written approval of Lender:
(i) issue any loan capital or enter into any commitment with this Agreement or any Pre-Funding Agreement, person with respect to the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; issue of any loan capital;
(ii) make any breach borrowing from its bankers other than in the ordinary and usual course of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or business;
(iii) create or grant any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and Encumbrance over the performance of this Agreement, any Pre-Funding Agreement whole or any Facility Specific Terms part of the business, undertaking or assets of the Company or over any shares in connection the Company or any member of the Company’s Group, or agree to do so;
(iv) make any loan (otherwise than by way of deposit with a bank or other institution the transactions contemplated therein normal business of which includes the acceptance of deposits or in the MoU.ordinary course of business) or grant any credit (other than in the normal course of trading) or giving any guarantee (other than in the normal course of trading) or indemnity; or
(v) issue or grant any options or warrants under which the holder may subscribe for Common Shares (other than in accordance with an employee incentive share scheme) which have an exercise price which is less than half the amount of the Conversion Price;
(k) supply the Lender with the financial and other information necessary to keep the Lender informed about how effectively the Company is performing and in particular shall supply the Lender with quarterly management accounts of the Company within 28 days after the end of the month to which they relate, which shall include a profit and loss account, a balance sheet and a cashflow statement and such other information as the Lender may reasonably require;
Appears in 2 contracts
Sources: Convertible Loan Agreement (Bunker Hill Mining Corp.), Convertible Loan Agreement (Bunker Hill Mining Corp.)
Undertakings. The Beneficiary Member State undertakesWhile any Additional Tier 1 Security remains outstanding, in relation the Company shall (if and to General Government Debtthe extent permitted by the Applicable Regulations from time to time and only to the extent that such undertaking would not cause a Regulatory Event to occur), until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including save with the Facility Specific Terms) have been fully paidapproval of an extraordinary Shareholder resolution:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) not make any issue, grant or distribution or take or omit to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or take any other encumbrance action if the effect thereof would be that, upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant Automatic Conversion of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon Additional Tier 1 Securities, Ordinary Shares could not, under any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising applicable law then in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment projecteffect, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such legally issued as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedfully paid;
(b) in the event of a Newco Scheme, take (or shall procure that there is taken) all necessary action to utilise all Financial Assistance consistently with ensure that the Decision Newco Scheme is an Exempt Newco Scheme and that immediately after completion of the Scheme of Arrangement, any amendments to the Indenture as may be necessary to ensure that the Additional Tier 1 Securities may be converted into or exchanged for ordinary shares or units or the equivalent in force at the relevant time and Newco in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial AssistanceIndenture;
(c) use all reasonable endeavors to obtain ensure that the Settlement Shares issued upon Automatic Conversion of the Additional Tier 1 Securities following a Trigger Event shall be admitted to listing and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including trading on the Facility Specific Terms) and each Pre-Funding AgreementRelevant Stock Exchange;
(d) following the Automatic Conversion of the Additional Tier 1 Securities, take all reasonable actions as may be necessary to (a) register any additional ADSs, (b) deposit a sufficient number of ADSs with the ADS Depository, and (c) ensure that at all times all Financial Assistance made available such ADSs shall continue to be listed on the Beneficiary Member State under New York Stock Exchange or, if the Facilities shall constitute an unsecured (save ADSs cease to be listed on such exchange, to be admitted to trading on a national securities exchange in the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessUnited States;
(e) notwithstanding any Settlement Shares Offer, at all times keep available for issue, free from pre-emptive or other preferential rights, sufficient Ordinary Shares to comply enable Automatic Conversion of the Additional Tier 1 Securities to be satisfied in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreementfull;
(f) in circumstances where the provisions of this First Supplemental Indenture or the Additional Tier 1 Securities contemplate the appointment of a Settlement Share Depository, the Company shall use all reasonable endeavors to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;promptly appoint such Settlement Share Depository; and
(g) not to enter into where the provisions of the Indenture require or arrange (without the prior written consent of EFSF) any transactions or arrangements provide for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clausedetermination by an Independent Financial Adviser, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order Company shall use all reasonable endeavors promptly to request appoint an Independent Financial Adviser for such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.purpose.
Appears in 2 contracts
Sources: First Supplemental Indenture (Lloyds Banking Group PLC), First Supplemental Indenture (Lloyds Banking Group PLC)
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under the Director undertakes with the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with it is and shall continue to be the exception sole director of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
the Security Trustee, save (i) not pursuant to secure a Programme Resolution by mortgage, pledge the holders of the Covered Bonds in accordance with Clause 25 of the Trust Deed or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course provisions of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedClause 8 hereof;
(b) it shall only resign from its position as director of the Security Trustee as soon as a suitable person, trust or administration office, reasonably acceptable to utilise the CBC and the Issuer, after having consulted the Secured Parties, other than the Covered Bondholders, has been contracted to act as successor director of the Security Trustee, subject to an Extraordinary Resolution by the Covered Bondholders in accordance with Clause 25 of the Trust Deed, and subject to Rating Agency Confirmation;
(c) the Security Trustee shall undertake no other business, except as provided for in the Transaction Documents, until the Issuer and the CBC no longer have any actual or contingent liabilities under any of the Transaction Documents, including, but not limited to, all Financial Assistance consistently liabilities vis-à-vis any and all of the Secured Parties;
(d) it shall manage the affairs of the Security Trustee in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice and with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent account of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtednessthird parties;
(e) it shall not as director of the Security Trustee (i) agree to comply any alteration of any agreement including, but not limited to, the Transaction Documents, to which the Security Trustee is a party or (ii) enter into any agreement, without having consulted the Secured Parties, other than the Covered Bondholders, prior thereto and subject to Rating Agency Confirmation, except as provided for in all respects with applicable laws which might affect its ability to perform any of the Transaction Documents or (iii) appoint other directors of the Security Trustee save as provided in Clause 25 of the Trust Deed or Clause 8 of this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay it and the amount allocated by EFSF Security Trustee shall refrain from any action detrimental to the Beneficiary Member State of any fees, costs Security Trustee's rights and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to obligations under the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeTransaction Documents;
(g) not it shall exercise all its rights and powers as director of the Security Trustee in compliance with the Transaction Documents;
(h) it shall procure that the Security Trustee will at all times fulfil and comply with its obligations under each Transaction Document to which it is or will become a party, provided that to the extent that such obligations are contingent or dependent for their performance on the due performance by any other party of its obligations and undertakings under any Transaction Document such other party duly performs such obligations and undertakings thereunder;
(i) it shall take no action (i) to dissolve the Security Trustee, or (ii) to enter into a legal merger or arrange a legal demerger involving the Security Trustee, or (without iii) to have the prior written consent Security Trustee converted into a foreign entity, or (iv) to have the Security Trustee request the court to grant a suspension of EFSFpayments, or (v) to have the Security Trustee declared bankrupt;
(j) it shall not as director of the Security Trustee assign, novate or amend this Agreement;
(k) it shall ensure that the Issuer, the CBC, the Secured Parties, other than the Covered Bondholders, and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of any transactions steps being taken by any party in connection with the winding up, liquidation or arrangements bankruptcy of the Security Trustee or of any steps or proceedings being taken against the Security Trustee for the acquisition, purchase enforcement of any debt or exchange of New Greek Bonds, directly or indirectly via obligation and in particular that the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this ClauseIssuer, the Beneficiary Member State must notify EFSF CBC, the Secured Parties, other than the Covered Bondholders, and the Rating Agencies are notified in writing within two (2) calendar days of any summons to attend court hearings on a petition for bankruptcy being served on or received by the Security Trustee;
(l) it shall procure that the Security Trustee, the Administrator and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of the details occurrence of any of the proposed transaction events set forth in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionClause 8.2 hereof; and
(hm) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or it shall comply with the MoU being incorrect, inaccurate or misleading; (ii) any breach requirements of the representations, warranties and/or undertakings Dutch law regarding services as provided for in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and including the performance Dutch Act on the Supervision of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.Trust Offices as amended from time to time.
Appears in 2 contracts
Sources: Management Security Trustee Agreement, Management Security Trustee Agreement
Undertakings. 7.1 The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paidIssuer hereby undertakes that:
(a) The Issuer shall pay to the Payees named on the Note, all Principal Subscription Amounts in accordance with the exception repayment schedule specified in the Note, such repayment to be made by GIRO into the MSense Account or in such other manner as may be notified by MSense to the Issuer from time to time;
(b) The Issuer shall immediately inform MSense in writing of those encumbrances enumerated any change to any of the information provided by the Issuer;
(c) The Issuer shall immediately notify MSense of the occurrence of any Event of Default;
(d) The Issuer shall not pass any resolution approving any change in Subdirectors or shareholders of the Issuer or the divestment of any or all of the shareholding of any shareholder, without obtaining the prior written consent of MSense;
(e) The Issuer shall not pass any resolution for the winding-paragraphs up of the Issuer, nor cause a petition for winding-up to be presented against the Issuer, or the appointment of a receiver or receiver and manager of the respective undertakings or assets of the Issuer; and
(a)(ii)(1f) The Issuer shall not act in any manner that constitutes a breach of any terms of any Note Document, the Privacy and Data Protection Policy or the Code of Conduct;
(g) The Issuer shall comply, in all respect, with all laws of any applicable jurisdiction;
(h) The Issuer shall comply with all requirements pertaining to (a)(ii)(8) belowthe registration of prospectuses and/or any applicable exemptions from the requirement to register a prospectus under the laws of any applicable jurisdiction, including without limitation:
(i) not to secure by mortgageWhere a Note is issued under the Small Offers Exemption, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance maximum amount of Promissory Notes the Issuer issues during a 12 months period shall, at together with funds raised through the issuance of other Securities and Debentures during that same time12 months period, share pari passu and pro rata in be S$5,000,000 or such security; andother amount as from time to time notified on the Platform. The maximum amount shall be calculated on a 12 months rolling basis;
(ii) Where a Note is issued under the Private Placement Exemption, the Issuer has not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances made, and shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment projectmake, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees any fund-raising, during any 12 months period, any offers of Securities and Debentures, including Issue Requests, to look to the properties financed and the revenues to be generated by the operation ofmore than 50 persons, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding AgreementPayees or potential payees approached through the Platform;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.
Appears in 2 contracts
Sources: Issuer’s Agreement, Payee's Agreement
Undertakings. 10.1 The Beneficiary Member State undertakesBorrower undertakes with the Lender that, in relation to General Government Debt, from the date of this Agreement until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due its liabilities under this Agreement (including the Facility Specific Terms) have been fully paiddischarged:
(a) it shall comply in all respects with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) all laws and regulations to (a)(ii)(8) below:which it may be subject, if failure to do so has or is reasonably likely to have a Material Adverse Effect;
(ib) it will notify the Lender of any Default (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence;
(c) it will not without the consent of the Lender (not to secure by mortgage, pledge be unreasonably withheld or delayed) amend any other encumbrance upon of its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless Constitutional Documents (subject to the Financial Assistance shall, at requirements of the same time, share pari passu and pro rata in such security; andScheme);
(iid) it will carry on and conduct its business in a proper and efficient manner and will not make any change to grant to any other creditor the general nature or holder scope of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances business as carried on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(be) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to any unsecured and unsubordinated claims of the Beneficiary Member State Lender against it or any other member of the Group under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and Finance Documents will rank at least pari passu with the claims of all its other present and future unsecured and unsubordinated loans and obligations creditors except those creditors whose claims are mandatorily preferred by laws of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) general application to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreementcompanies;
(f) it shall not:
(i) create, or permit to pay the amount allocated by EFSF to the Beneficiary Member State subsist, any Security on or over its assets; or
(ii) sell, transfer, lease or otherwise dispose of any fees, costs and expenses, including in particular Issuance Costs, breakage of its assets on terms whereby such assets are or termination costs, and Cost of Carry incurred in respect of any Funding Instruments may be leased to or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Prere-Funding Operations) regardless of whether the provision of any Financial Assistance acquired or any utilisation under a Facility takes placeacquired by it;
(g) it shall not incur or permit to enter into or arrange (without the prior written consent of EFSF) be outstanding any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromIndebtedness other than:
(i) any information Indebtedness incurred under the Finance Documents; and
(ii) any Permitted Financial Indebtedness.
(h) It shall use all reasonable endeavours to provide such other authorisation, document, opinion or assurance which is received from the Beneficiary Member State Lender in its reasonable opinion considers necessary or desirable in connection with this Agreement or any Pre-Funding Agreementthe entry into, and performance of, the transactions contemplated herein by the Finance Documents, or with for the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into Finance Documents to be valid and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.enforceable.
Appears in 2 contracts
Sources: Working Capital Loan Agreement, Working Capital Loan Agreement
Undertakings. The Beneficiary Member State undertakesUnless otherwise permitted by the Principal Finance Documents, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including during the Facility Specific Terms) have been fully paid:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing term of this Agreement, provided that such encumbrances remain confined the Transferor undertakes to the properties presently affected thereby and properties which become affected by such encumbrances under contracts Collateral Agent:
13.1 to inform the Collateral Agent in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation writing promptly of any floating charge attachments (Pfändung) of which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred becomes aware in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation and all of the Specified Collateral and/or the Licence Receivables. In the event of an attachment, the Transferor undertakes to forward to the amounts raised to fund Collateral Agent without undue delay a copy of the Liquidity Bufferattachment order (Pfändungsbeschluss), Financings and/or Pre-Funding Operationsthe garnishee order (Überweisungsbeschluss) regardless of whether and all other documents necessary for a defence against the provision of any Financial Assistance or any utilisation under a Facility takes placeattachment. The Transferor shall inform the attaching creditor without undue delay about the Collateral Agent’s security interests;
(g) 13.2 not to enter into or arrange (without dispute the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF validity of the details Specified Collateral or of new applications for registration with regard to the proposed transaction Specified Collateral;
13.3 if failure to do the following would have a material adverse effect, to make all statements and take all actions at its own expense which are reasonably required in order to request such consent no fewer than ten (10) Business Days prior maintain the registration of the Specified Collateral in the ordinary course of business, including the payment of renewal fees, and have the Specified Collateral registered if not registered so far and necessary to maintain the legal title therein and to deliver to the date Collateral Agent at its reasonable request copies of the respective documents evidencing such actions;
13.4 to inform the Collateral Agent without undue delay if third parties materially dispute or challenge the validity of any of the Specified Collateral or materially allege that any of the Specified Collateral violates the rights of third parties, and assert all claims and to litigate if this is required for the defence against such claims. Following the occurrence of an Enforcement Event and whilst it is continuing, the Transferor agrees that the Collateral Agent may take over any judicial or extra judicial proceedings upon which reasonable request and at the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionTransferor’s expense; and
(h) more generally, 13.5 subject to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance Clause 9 of this Agreement, to refrain from any Pre-Funding Agreement acts or omissions, the purpose or effect of which is or would be the material dilution of the value of the Licence Receivables or the Licence Receivables ceasing to be assignable or subjecting any Facility Specific Terms or in connection with the transactions contemplated therein or Licence Receivable to any law other than German law other than in the MoU.Transferor’s ordinary course of business;
13.6 to inform the Collateral Agent without undue delay, if third parties infringe any of the Specified Collateral in a way which would have a material adverse effect on the Collateral Agent’s and/or the Secured Parties’ rights relating to the Specified Collateral. The Transferor shall, acting commercially reasonably and considering the legitimate interest of the Collateral Agent and the Secured Parties, prosecute such infringement in its own name and at its own expense. All compensation claims becoming due after the date hereof become part of the Specified Collateral. Following the occurrence of an Enforcement Event and whilst it is continuing the Collateral Agent and/or the Secured Parties may take over any judicial or extra judicial proceedings upon request and at the Transferor’s expense.
Appears in 2 contracts
Sources: Security Transfer and Assignment Agreement (RenPac Holdings Inc.), Security Transfer and Assignment Agreement (RenPac Holdings Inc.)
Undertakings. The Beneficiary Member State undertakes11.1 Each of the Parent and the Borrower undertakes to the Lender that, unless otherwise agreed in relation to General Government Debtwriting by the Lender, until such time from the date of this Agreement and so long as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due any monies are owing under this Agreement (including or remain available for drawing by the Facility Specific Terms) have been fully paidBorrower:
(a) with from the exception Release Date, it will (and, in the case of those encumbrances enumerated in Sub-paragraphs the Parent, will procure each of its Subsidiaries will) ensure that the proceeds of any issue of shares, securities convertible into shares or other equity or debt instruments (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon raising of debt finance) by the Parent or any of its own assets Subsidiaries which is a Holding Company of the Borrower (the “Proceeds”) are directly or revenues any present indirectly applied in prepayment of the Advances (together with all accrued interest and other amounts due or future Relevant Indebtedness outstanding under this Agreement) within 3 Business Days of receipt by the relevant member of the Parent Group of such proceeds (provided that, prior to the Release Date, cash amounts representing the Proceeds may only be applied in prepayment of the Advances with the prior consent of the Senior Facility Agent (if prior to the Senior Discharge Date) and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at Subordinated Facility Agent (if prior to the same time, share pari passu and pro rata in such securitySubordinated Discharge Date)); and
(iib) it will not to grant to any other creditor or holder (and, in the case of the Parent, will procure that none of its sovereign debt Subsidiaries will) create, assume, incur or otherwise permit to be outstanding any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute Subordinated Debt with a breach of this Clause:
(1) encumbrances upon any property incurred repayment or maturity date falling prior to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing15 April, 2013; and
(2c) encumbrances on commercial goods arising in upon the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country request of the Beneficiary Member StateLender, it will execute and deliver such further documents and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Agreement.
11.2 In the event of any merger or other consolidation of the Parent or the Borrower with any person, the Parent and/or the Borrower, as the case may be, shall execute such documents and take such action as the Lender may reasonably require so as to ensure that:
(a) the successor entity remains bound by the terms of this Agreement as the Parent or, as the case may be, the Borrower; and
(3b) encumbrances securing or providing for the payment Lender has the same rights against the successor entity as it would have acquired had the successor entity been an original party to this Agreement as the Parent or, as the case may be, the Borrower.
11.3 Each of Relevant Indebtedness incurred exclusively in order to provide financing for the Parent and the Borrower acknowledges and agrees that:
(a) the Lender may be irreparably harmed by a specific investment project, provided that the properties to which breach of any such encumbrances apply are properties which are the subject term of such project financing, or which are revenues or claims which arise from the projectthis Clause 11 and damages may not be an adequate remedy; and
(4b) the Lender may be granted an injunction or specific performance for any other encumbrances in existence on the date threatened or actual breach of the signing any term of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU..
Appears in 2 contracts
Sources: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)
Undertakings. The Beneficiary Member State undertakesOnce the performance of a Secondary Public Offering is requested, as set forth in this Section, and as long as VDQ has not exercised its Right of First Refusal, after satisfactory completion of the feasibility study referred to in Section 8.4 below, SALIC, jointly with VDQ and the Company, undertake, pursuant to the applicable regulations, to prepare the required documentation, enter into the proper agreements, allow whomever it may lawfully concern to carry out a due diligence in the Company to the extent required and usual to this kind of offering, and take all other measures required to perform the Secondary Public Offering, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) compliance with the exception provisions of those encumbrances enumerated the Brazilian Law, the CVM rules applicable to the Secondary Public Offering and, as applicable, the rules of B3 (or of any other stock exchange in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) belowBrazil or abroad at the discretion of SALIC), as soon as possible, including but not limited to:
(i) not prepare and file with CVM and B3 an updated reference form of the Company, as well as the Secondary Public Offering prospect, and take all other measures that may be required for compliance with the provisions of Brazilian Law and the CVM rules applicable to secure the Secondary Public Offering;
(ii) enter into a distribution and coordination agreement of the Secondary Public Offering, with scope, form and substance usual to the market, and take all other measures reasonably requested by mortgage, pledge SALIC or by the Global Coordinator of the Secondary Public Offering in such a manner as to speed and enable the successful Secondary Public Offering and to arrange for providing the Global Coordinator (and occasionally any other encumbrance upon its own assets arrangers or revenues coordinators of the Secondary Public Offering) with legal opinions of the Company in usual form, covering any present or future Relevant Indebtedness matters usually covered in public offerings of the same nature, as reasonably requested by the Global Coordinator;
(iii) pursuant to the applicable regulations, provide any financial, corporate and real estate documents and any guarantee other relevant documents for analysis by a representative of SALIC, by the Global Coordinator of the Secondary Public Offering and by any lawyers or indemnity given auditors engaged by SALIC, by the Company or by the Global Coordinator, and cause the management, the employees and the auditors of the Company to supply any information requested (in respect thereofthe manner usually made in audits conducted in public offerings of securities) by any representative, unless arranger or coordinator, lawyer or auditor in relation to the Financial Assistance shall, at the same time, share pari passu and pro rata in such securitySecondary Public Offering; and
(iiiv) not to grant to take any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant measures reasonably required for implementation of the following encumbrances shall not constitute a breach of this Clause:Secondary Public Offering.
(1) encumbrances upon 8.2.1. If there is any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising change in the course of ordinary commercial transactions (and expiring at applicable Law and/or regulations modifying the latest within one year thereafter) to finance the import practices or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depositoryprocedures above, such practices and procedures shall be modified by mutual agreement between the Parties in such a manner as Euroclear or Clearstream, given in to optimize the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.Secondary Public Offering.
Appears in 2 contracts
Sources: Shareholders’ Agreement, Shareholder Agreement
Undertakings. The Beneficiary Member State undertakes1.1 In consideration of SuperGen agreeing to acquire the entire issued and to be issued share capital of the Company (the “Acquisition”) by way of a scheme of arrangement under section 895 of the Companies ▇▇▇ ▇▇▇▇ (the “Scheme”), on the terms and subject to the conditions of a scheme circular to be produced in relation connection with the Acquisition containing terms and conditions set out at Appendix 2 of the implementation agreement dated 2011 between SuperGen and the Company (the “Implementation Agreement”), with capitalized terms not otherwise defined herein having the meanings given to General Government Debtsuch terms in the Implementation Agreement we, until such time the undersigned, hereby irrevocably and unconditionally (save as all Financial Assistance has been fully reimbursed specified below) warrant with respect to paragraph (a) and all interest undertake with respect to paragraphs (b) to (d) below to and additional amountsconfirm and agree with SuperGen, if anywith effect from the date of this undertaking, due under this Agreement (including the Facility Specific Terms) have been fully paidthat:
(a) [ ] (the “Shareholder”) is the beneficial owner (and unless otherwise specified in the schedule to this undertaking is also the registered holder and to the extent that the Shareholder is not the registered holder the Shareholder will (so far as the Shareholder is able) procure compliance by such registered holder(s) with the exception terms of those encumbrances enumerated this undertaking), of the number of shares in Sub-paragraphs the capital of the Company (a)(ii)(1the “Shares”) specified in paragraph 1 of the schedule to this undertaking (a)(ii)(8the “Committed Shares”) below:
(i) not to secure by mortgage, pledge or which expression shall include any other encumbrance upon its own assets Shares acquired or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless purchased by the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at undersigned after the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof undertaking or any refinancing of other shares or interests attributable to or derived from such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedCommitted Shares);
(b) the Shareholder shall exercise, or (so far as it is able in relation to utilise shares of which it is the beneficial owner but not the registered owner (“Beneficial Owned Shares”)) procure the exercise of, all Financial Assistance consistently voting rights attaching to the Committed Shares to vote in favour of all resolutions to approve the Scheme, and any related matters, proposed at any general or class meeting (the “General Meeting”) and the Court convened meetings (the “Court Meetings”) of the Company to be convened and held in connection with the Decision as in force Scheme, or at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date any adjournment of the Request for Funds applicable to any such Financial Assistancemeeting;
(c) the Shareholder shall execute, or (so far as it is able in relation to obtain Beneficial Owned Shares) procure the execution of, any forms of proxy in respect of the Committed Shares required by SuperGen appointing any person nominated by SuperGen to attend and maintain vote at any General Meeting or Court Meeting in full force respect of the resolutions to approve the Scheme, and effect all authorisations necessary for it any related matters, and HFSF to comply with its obligations under this Agreement shall ensure that any such executed forms of proxy are received by Astex not later than 3.00 p.m. on the fifth business day (including being any day which is not a Saturday, Sunday, a bank holiday or a public holiday in England and Wales (a “Business Day”)) after receipt by the Facility Specific Terms) Shareholder of the formal document setting out the terms and each Pre-Funding Agreementconditions of the Scheme (the “Scheme Document”);
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under Shareholder shall not revoke, or procure the Facilities shall constitute an unsecured (save to revocation of, the extent terms of any security provided proxy submitted in accordance with Clause 5(2)(a)(i)sub-paragraph 1.1(c), direct, unconditional, unsubordinated and general obligation other than by attendance at any General Meeting or Court Meeting where the Shareholder votes in favour of the Beneficiary Member State and will rank at least pari passu Scheme in accordance with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtednessthis undertaking;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including 1.2 In the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay event the amount allocated by EFSF to Shareholder does acquire or purchase any Shares, after the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance execution of this Agreementundertaking such Shares, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or shall be deemed to be included in the MoU.definition of “Committed Shares”.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with the CBC and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) it shall only resign from its position as director of the CBC as soon as a suitable person, trust or administration office, reasonably acceptable to the Security Trustee, after consultation with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) Secured Creditors, other than the Covered Bondholders, has been contracted to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant act as director of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred CBC subject to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedRating Agency Confirmation;
(b) to utilise all Financial Assistance consistently the CBC shall undertake no other business, except as provided for in the Transaction Documents, until the CBC no longer has any actual or contingent liabilities under any of the Transaction Documents and any Covered Bonds;
(c) it shall manage the affairs of the CBC in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice with the same has been modified care it exercises or supplemented as at would exercise the date administration of similar matters whether held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) it shall continue to ensure that at all times all Financial Assistance made available to be the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation sole director of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC;
(e) it shall as director of the CBC not (i) agree to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State any alteration of any feesagreement including, costs and expensesbut not limited to, including in particular Issuance Coststhe Transaction Documents, breakage to which the CBC is a party or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operationsii) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (any agreement in each case without the prior written consent of EFSFthe Security Trustee and subject to Rating Agency Confirmation and in accordance with any other requirements in any of the Transaction Documents;
(f) it and the CBC shall refrain from taking any transactions action detrimental to the CBC's rights and obligations under or arrangements in connection with the Transaction Documents;
(g) it shall exercise all its rights and/or powers as director of the CBC in compliance with the Transaction Documents;
(h) it shall procure that the CBC will at all times fulfil and comply with its obligations under each Transaction Document to which it is or will become a party, provided that to the extent that such obligations are contingent or dependent for their performance on the acquisitiondue performance by any other party of its obligations and undertakings under any Transaction Document, purchase or exchange such other party duly performs such obligations and undertakings thereunder;
(i) it shall not, as director of New Greek Bondsthe CBC, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require engage external advisers without the prior written consent of EFSF pursuant the Security Trustee, which consent shall not be unreasonably withheld and which consent shall be presumed to this Clause, have been given if the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten Security Trustee will not have replied within five (105) Business Days prior to from the date upon which of the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andwritten request from the CBC;
(hj) more generallyit shall not, to indemnify and hold harmless EFSF on first demand from and against any additional interestas director of the CBC, costsnovate or amend this Agreement without the prior written consent of the Security Trustee;
(k) it shall not, claimsas director of the CBC, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
take action (i) any information which is received from to dissolve (ontbinden) the Beneficiary Member State in connection with this Agreement CBC, or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of to enter into a legal merger (juridische fusie) or legal demerger (juridische splitsing) involving the representationsCBC, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.or
Appears in 1 contract
Sources: Management Agreement
Undertakings. The Beneficiary Member State undertakesEach of the Seller and the Obligor irrevocably agree and undertake, in relation on their own behalf and not on behalf of one another, to General Government Debt, until such time the Bank as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paidfollows:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(iSeller only) not to secure by mortgage, pledge or assign the Receivables to any other encumbrance upon its own assets person than Bank, not to burden them with any right of pledge, and not to transfer them or revenues burden them in any present or future Relevant Indebtedness other manner;
b) to execute, sign and deliver all documents for the fulfilment of the terms and conditions of the Purchase Documents and take each and every action reasonably needed for the Bank to obtain the exclusive rights on the Receivables under the Contract and to hand over to the Bank without any guarantee or indemnity given in respect thereof, unless delay all necessary documents and to give all necessary information concerning the Financial Assistance shall, at Receivables under the same time, share pari passu and pro rata in such security; andContract requested by the Bank;
(iic) not to grant to breach any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant provision of the following encumbrances Contract materially affecting the rights of the Bank under the assignment of Receivables;
d) (Seller only) unless the Seller has paid to the Bank the full amount stipulated in Section 8.3 (Early Expiry of the Contract), Seller shall not constitute agree on a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension Earlier Expiry of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (Contract without the explicit prior written consent of EFSFthe Bank;
e) any transactions or arrangements for (Seller only) unless the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via Seller has paid to the Bank the full amount stipulated in Section 8.4 (Reduction of GreeceAnnual Fee), any affiliate or agent or any special purpose entity whether at Seller shall not agree on a price equal to, above or below par value, unless such transaction or arrangement for Reduction of the acquisition, purchase or exchange of New Greek Bonds is for Annual Fee without the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the explicit prior written consent of EFSF pursuant the Bank;
f) (Seller only) unless Seller has paid to this Clause, the Beneficiary Member State must notify EFSF Bank the full amount stipulated in Section 8.3 (Early Expiry of the details Contract), Seller shall not sell, transfer or otherwise dispose of the proposed transaction Facilities without the explicit prior written consent of the Bank;
g) (Seller only) without the explicit prior written consent of the Bank, other than the Contract which the Obligor may record on the title of the Facilities or obtain a court decree under Austrian law so recording, not to create, extend or permit to arise or subsist any security interest, mortgage, pledge, or any other agreement or arrangement having the effect of conferring security over or in respect of the whole or any part of the Facilities;]
h) (Seller only) without the explicit prior written consent of the Bank not to agree to any changes of the Contract materially affecting the right of the Bank under the assignment of Receivables in particular not to agree to any amendment of the Contract concerning the payment of the Annual Fee as defined and provided in clause 3 (a) of the Contract.;
i) to assist the Bank (without receiving any fees or cost reimbursement therefore) at Bank's request in any judicial or other action for the enforcement of, or the preservation of any rights in respect of, any of the assigned/transferred Receivables and the security and ancillary rights thereto, if any;
j) (Seller only) to accept upon Bank's request any reassignment/retransfer of the Receivables to the Seller in order to request such consent no fewer than ten enforce the Receivables for the Bank in Seller's own name but on Bank's account as trustee.
k) (10Seller only) Business Days prior to deliver to the date upon Bank as soon as the same become available, but in any event within 120 days after the end of each of its financial years its audited financial statements for such financial year and such other financial information which the Beneficiary Member State enters into, or proposes Bank reasonably requests from time to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.time.
Appears in 1 contract
Sources: Offer for Purchase of Receivables (Magna Entertainment Corp)
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with the CBC and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) it shall only resign from its position as director of the CBC as soon as a suitable person, reputable trust office or administration office, reasonably acceptable to the Security Trustee, after consultation with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) Secured Creditors, other than the Covered Bondholders and after having notified the Rating Agency, has been contracted to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant act as successor director of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedCBC;
(b) to utilise all Financial Assistance consistently the CBC shall undertake no other business except as provided for in the Transaction Documents until the CBC no longer has any actual or contingent liabilities under any of the Transaction Documents and any Covered Bonds;
(c) it shall manage the affairs of the CBC in accordance with the Decision as proper and prudent Dutch business practice and in force at the relevant time accordance with its articles of association and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) it shall continue to ensure that at all times all Financial Assistance made available to be the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation sole director of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC;
(e) it shall as director of the CBC not (i) agree to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State any alteration of any feesagreement including, costs and expensesbut not limited to, including in particular Issuance Coststhe Transaction Documents, breakage to which the CBC is a party or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operationsii) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (any agreement in each case without the prior written consent of EFSFthe Security Trustee and provided that the Rating Agency has been notified and in accordance with any other requirements in any of the Transaction Documents;
(f) it and the CBC shall refrain from any transactions action detrimental to any of the CBC's rights and obligations under or arrangements in connection with the Transaction Documents;
(g) it shall exercise all its rights and/or powers by virtue of being director of the CBC in compliance with the Transaction Documents;
(h) it shall procure that the CBC shall at all times fulfil and comply with its obligations under each Transaction Document to which it is or will become a party, provided that to the extent that such obligations are contingent or dependent for their performance on the acquisitiondue performance by any other party of its obligations and undertakings under any Transaction Document such other party duly performs such obligations and undertakings thereunder;
(i) it shall not, purchase or exchange as director of New Greek Bondsthe CBC, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require engage external advisers without the prior written consent of EFSF pursuant the Security Trustee, which consent shall not be unreasonably withheld and which consent shall be presumed to this Clause, have been given if the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten Security Trustee will not have replied within five (105) Business Days prior to from the date upon which of the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andwritten request from the CBC;
(hj) more generallyit shall not, to indemnify and hold harmless EFSF on first demand from and against any additional interestas director of the CBC, costsnovate or amend this Agreement without the prior written consent of the Security Trustee;
(k) it shall not, claimsas director of the CBC, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
take action (i) any information which is received from to dissolve the Beneficiary Member State in connection with this Agreement CBC, or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of to enter into a legal merger or legal demerger involving the representationsCBC, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any actionto have the CBC converted into a foreign entity, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.or
Appears in 1 contract
Sources: Management Agreement
Undertakings. 7.1 The Beneficiary Member State undertakesIssuer has covenanted and undertaken that for so long as any Note remains outstanding, save with the approval from the Noteholders or it is being considered by the Board that such action is in the ordinary course of business of the Group:
(i) the Issuer shall from time to time keep available for issue, free from pre-emptive rights, out of its authorised but unissued capital, sufficient Shares to satisfy in full the allotment and issuance of the Conversion Shares and shall ensure that all Shares delivered on conversion of the Notes will be duly authorised, validly issued as fully- paid , free from Encumbrances and non-assessable and registered in the name of the Noteholders or their respective nominee(s);
(ii) the Issuer shall not modify the rights attaching to the Shares with respect to voting, dividends or liquidation nor issue any other class of ordinary share capital carrying any rights which are more favourable than the rights attaching to Shares but nothing in this Condition 7.1(ii) shall prevent (a) a consolidation or subdivision of the Shares or the conversion of any Shares into stock or vice versa, (b) a modification to the rights attaching to the Shares which is not, in relation the opinion of the Approved Financial Adviser, materially prejudicial to General Government Debtthe interests of the Noteholders, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts(c) the conversion of Shares into, if anyor the issue of any Shares in, due under this Agreement uncertificated form (or the conversion of Shares in uncertificated form to certificated form), (d) the amendment of the constitutional documents of the Issuer to enable title to securities of the Issuer (including Shares) to be evidenced and transferred without a written instrument, (e) any other alteration to the Facility Specific Termsconstitutional documents of the Issuer made in connection with the matters described in this Condition 7.1 or which are supplemental or incidental to any of the foregoing (including amendments made to enable or facilitate procedures relating to such matters and amendments dealing with the rights and obligations of holders of securities (including Shares) have been fully paiddealt with under such procedures) or (f) any issue of equity share capital which (subject to the provisions of Condition 6.5) results in an adjustment of the Conversion Price;
(iii) the Issuer shall use its best endeavours to:
(a) with maintain a listing for all the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless issued Shares on the Financial Assistance shall, at the same time, share pari passu and pro rata in such securityStock Exchange; and
(iib) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant obtain a listing on the Stock Exchange for all the Conversion Shares;
(iv) it will pay the expenses of the following encumbrances shall not constitute a breach issue and delivery of, and all expenses of this Clause:obtaining and maintaining the listing for, Shares arising on conversion of the Notes;
(1v) encumbrances the Issuer shall ensure that all Conversion Shares shall be duly authorised and validly issued, fully paid and registered, and free from Encumbrances and all such Shares shall rank pari passu in all respects with the fully paid Shares in issue on the relevant Delivery Date and shall accordingly entitle the holders thereof to participate in full in all dividends or other distributions the record date for which falls on a date on or after the relevant Delivery Date;
(vi) the Issuer shall comply with and procure the compliance of all conditions imposed by the Stock Exchange for approval of the issue of the Notes or for the listing of and permission to deal in the Shares issued or to be issued on conversion and ensure the continued compliance thereof;
(vii) the Issuer will notify the Noteholders in writing immediately upon any property incurred to secure becoming aware of the purchase price of such property and any renewal or extension occurrence of any such encumbrance Event of Default or any event or circumstance which is limited to would, with the original property covered thereby and which secures any renewal or extension giving of notice and/or the original secured financinglapse of time and/or the issuing of a certificate, become an Event of Default; and
(2viii) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring Issuer shall at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with times use its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) reasonable endeavours to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation minimum public float requirement of the Beneficiary Member State Listing Rules is complied with.
7.2 The Issuer shall not (and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from shall procure that its present or future Relevant Indebtedness;
(eSubsidiaries shall not) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into any deed, agreement, assignment, instrument or arrange (without the prior written consent of EFSF) documents whatsoever binding on it, take any transactions action or arrangements for the acquisitionomit to do anything necessary, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction which may result in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representationsconstitutional documents of the relevant member of the Group, warranties and/or undertakings in this or any of the terms and conditions of the Notes, the Subscription Agreement, and/or any Pre-Funding Agreement other documents referred to in the Subscription Agreement.
7.3 The Issuer shall not issue any further Equity Securities if and to the extent that such issuance will result in the Issuer being unable to comply with the adjustment provisions of Condition 6.5 and its obligations to deliver Conversion Shares or result in breach of the Listing Rules (including but not limited to the minimum public float requirement of the Listing Rules).
7.4 So long as there are outstanding Notes, the Issuer will not, except with the prior consent of the Noteholders, issue any Facility Specific Terms; and/or Equity Securities at a conversion price or exchange price which is lower than the then applicable Conversion Price.
7.5 Unless so required by the Stock Exchange, the Listing Rules, applicable law or regulation or for the purpose of establishing any dividend or other rights attaching to the Shares, the Issuer shall not close the register of Shareholders of the Issuer or take any other action which would prevent the transfer of its Shares (iii) any actionincluding the Conversion Shares).
7.6 The Issuer shall, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into so far as permitted by applicable law and the performance of this AgreementListing Rules, any Pre-Funding Agreement or any Facility Specific Terms or in connection with do all such further things as may be necessary to give effect to these Conditions and the transactions contemplated therein or in the MoU.Notes.
Appears in 1 contract
Sources: Subscription Agreement
Undertakings. The Beneficiary Member State undertakesCompany agrees with the Initial Purchasers:
a) If at any time prior to payment of the purchase price of the Securities at the Time of Delivery, any event shall have occurred as a result of which the Public Disclosure, as then amended and supplemented, would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in relation the light of the circumstances under which they were made, not misleading or if for any other reason it shall be necessary to General Government Debtamend or supplement the Public Disclosure, until to promptly notify the Initial Purchasers and to prepare and publish such time announcements as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) may be agreed with the exception Initial Purchasers which will correct such statement or omission;
b) Promptly from time to time to take such action as the Initial Purchasers may reasonably request, consistent with the terms and conditions set forth in Annex I to this Agreement, to qualify the Securities for offering and sale under the securities laws of those encumbrances enumerated such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in Sub-paragraphs (a)(ii)(1such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
c) During the period beginning from the date hereof and continuing to (a)(ii)(8) below:
the date 90 days after the Time of Delivery: (i) not to secure by mortgageuse, pledge authorize, approve or refer to any other encumbrance upon its own assets written communication that constitutes an offer to sell or revenues any present a solicitation of an offer to buy the Securities without having first furnished the Initial Purchasers a copy of such written communication for review or future Relevant Indebtedness if the Initial Purchasers reasonably object; and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant make any other public announcements or disclosures regarding the issue, offering and placement of the Securities without, to the greatest extent legally possible, first having consulted with the Initial Purchasers and taken into account any comments reasonably made;
d) During the period beginning from the date hereof and continuing to the date 90 days after the Time of Delivery not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder any securities of the Company that are substantially similar to the Securities or the Shares, including but not limited to any other creditor securities that are convertible into or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of exchangeable for, or that represent the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred right to secure the purchase price of such property and any renewal receive, Shares or extension of any such encumbrance which is limited substantially similar securities (other than pursuant to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financingemployee stock option plans existing on, or which are revenues upon the conversion or claims which arise from the project; and
(4) any other encumbrances in existence on the date exchange of the signing of this Agreementconvertible or exchangeable securities outstanding as of, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further ), make any short sale, engage in any hedging or other transaction that is designed to or that reasonably could be expected to lead to or result in a sale or disposition (even if such encumbrances secure disposition would be by someone other than the Company), or provide for enter into a transaction with similar economic effect, or publicly announce the payment of only those obligations so secured or provided for on the date hereof or intention to do any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for foregoing, in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depositoryeach case, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSFthe Initial Purchasers; provided however that the foregoing shall not apply to securities issued or delivered in the context of acquisitions or joint ventures, provided further that the transferee of such securities agrees in writing to be bound by the terms of this Section 5(d) or the entry into the transactions contemplated by the Offering Documents or the Hedge and Warrant Documents;
e) Not to do or authorize any transactions act or arrangements thing on or after the date hereof and prior to the Time of Delivery that would, had any Securities then been outstanding, have resulted in an adjustment of the conversion rate of the Securities;
f) To assist the Initial Purchasers and use commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through Euroclear and Clearstream and to use its reasonable best efforts to maintain such eligibility for so long as the acquisitionSecurities remain outstanding;
g) During a period of five years from the Time of Delivery, purchase to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and to deliver to you soon as practicable after they are available and consistent with the Company’s obligations under the Exchange Act, copies of any reports and financial statements furnished to or filed with the Commission or any securities exchange on which any class of New Greek Bondssecurities of the Company is listed; provided that for so long as the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the terms of this Section 5(g) shall be deemed to have been complied with upon the filing or furnishing of such information on ▇▇▇▇▇; provided further that the terms of this Section 5(g) shall also be deemed to have been complied with if such information is disseminated in a manner that constitutes “public disclosure” within the meaning of Regulation FD;
h) None of the Company, its Affiliates, or any other person acting on its or their behalf will engage in any directed selling efforts in relation to the Securities within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S in relation to the Securities;
i) Not to (and to cause its subsidiaries not to) take, directly or indirectly via the Bank of Greeceindirectly, any affiliate action until the completion of the distribution of the Securities which is designed to or agent which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or the Shares, or which is in violation of the Market Abuse Regulation or any special purpose entity whether at a price equal tolegislation passed thereunder;
j) None of the Company, above its Affiliates, or below par valueany other person acting on its or their behalf will, unless such transaction directly or arrangement for the acquisitionindirectly, purchase make offers or exchange sales of New Greek Bonds is for the purposes of a short term investment as contemplated any security, or solicit offers to buy any security, under the PSI LM Facility. Where any transaction or proposed transaction circumstances that would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF registration of the details Securities under the Securities Act;
k) To take all necessary actions to have the Securities quoted on the Open Market within one (1) month of the proposed transaction Time of Delivery; and to use reasonable endeavors to obtain and thereafter to maintain a listing of the Securities on such other suitable stock exchange as it may (with the approval of the Initial Purchasers) decide if the Company at any time determines that it can no longer reasonably comply with the requirements for quotation of the Securities on the Open Market, and if maintenance of such quotation on the Open Market becomes in order to request such consent no fewer than ten (10) Business Days prior to the date upon which opinion of the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromCompany unduly onerous;
(i) any information which is To use the proceeds received by it from the Beneficiary Member State issue of the Securities in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with manner specified in the MoU being incorrect, inaccurate or misleadingOffering Documents; (ii) to not, directly or indirectly, use such proceeds, or lend, contribute or otherwise make available such proceeds to any breach subsidiary, joint venture partner or other individual or entity to fund or facilitate any activities or business of or with any Sanctioned Person or with any person located, operating, organized or resident in any Sanctioned Country, or in any other manner that in each case would result in a violation of Sanctions by any Person (including any individual or entity participating in the representationsoffering, warranties and/or undertakings in this Agreementwhether as underwriter, advisor, investor or otherwise) or otherwise be sanctionable under any Pre-Funding Agreement or any Facility Specific TermsSanctions; and/or and (iii) to not use, lend, contribute or otherwise make available, directly or indirectly, such proceeds in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF person in connection with EFSF entering into and the performance violation of any applicable Anti-Corruption Laws and/or Anti-Money Laundering Laws; any provision of this AgreementSection 5(l) shall not apply if and to the extent it is illegal, invalid or unenforceable as a result of any Pre-Funding Agreement applicable Blocking Regulation or any Facility Specific German law (including section 7 of the Foreign Trade and Payments Ordinance, Außenwirtschaftsverordnung, as amended) and, in such case, the legality, validity and enforceability of this Section 5(l) shall not otherwise be affected;
m) To effect and to use reasonable efforts to maintain the listing of the Shares issued in settlement of the Company’s obligations under the Warrant on a Relevant Exchange;
n) To execute on or before the Time of Delivery each Operative Document; and
o) At the Time of Delivery, the Company will publish the terms and conditions of the Securities (the “Terms or in connection with and Conditions”) (including a legend regarding the transactions contemplated therein or intended professionals target market for the Securities) on the website of the Company and will thereafter maintain the availability of such Terms and Conditions, as amended from time to time, on such website until such time as none of the Securities remain outstanding (as defined in the MoU.Indenture).
Appears in 1 contract
Sources: Purchase Agreement (Qiagen Nv)
Undertakings. The Beneficiary Member State undertakesEach Party undertakes that:
4.1 on each occasion that it wishes to Use the Data, it will only do so where:
4.1.1 A Patient has provided explicit Consent for the Party to do so; or
4.1.2 Where the Patient lacks capacity to make that decision themselves, Consent has been given in accordance with the exercise of parental responsibility and/or in accordance with the Mental ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ it is determined that such access is in the Patient‟s best interests, or authorised by a valid and applicable Lasting Power of Attorney or a Court appointed deputy, as applicable; or
4.1.3 Where Consent cannot be provided by or on behalf of a Patient, an Emergency Override may be used where a Legitimate Relationship exists between the Authorised System User and the Patient and where Use of the Data is lawful and necessary without Consent from the Patient, having due regard to the DPA, common law duty of confidence and appropriate legal requirements and professional codes of conduct. For the avoidance of doubt, an Emergency Override cannot be used where a Patient has explicitly refused Consent and has not withdrawn such Consent andthat it will record the grounds for each such Use in accordance with this clause.
4.2 it will use Data received from any other Partysolely for the Purposes;
4.3 it will only record and store Data in such a manner as to ensure compliance with the DPA;
4.4 it will notify the relevant Data Controller of the respective Party of any breaches of this Agreement or other failure to comply with or breach of the DPA or common law duty of confidence in relation to General Government Debt, until any Data originating from that Party within 24 hours of becoming aware of any such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including breach or failure to comply;
4.5 it will notify the Facility Specific Terms) have been fully paid:relevant Data Controller of the respective Party of any known inaccuracies within any Data originating from that Party within 24 hours of becoming aware of any such inaccuracy;
(a) 4.6 it will permit any of the other Partiesto audit its compliance with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement, including by an independent external auditor agreed between the Parties, upon reasonable request and written notice. The grant Parties may agree upon a third party to receive and coordinate all requests for any such audits and to provide advice to the Parties as to what may be a reasonable request;
4.7 it will provide upon request to any Data Subject (and offer to provide at the point of any contact, assessment and care provision):
4.7.1 The identity of the following encumbrances shall not constitute a breach of Parties to this Clause:
(1) encumbrances upon any property incurred to secure Agreement and the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension Data Controllers of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided Data that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of may be covered by this Agreement, provided that such encumbrances remain confined to . If the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under Party has nominated a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such representativesuch as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is Caldicott Guardian for the purposes of a short term investment as contemplated ensuring compliance with the DPA 1998, the identity of that representative;
4.7.2 The purpose or purposes for which Data are intended to be processed and shared under this Agreement;
4.7.3 Information on the rights of Data Subjects under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this ClauseDPA 1998, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement particularly in relation to such transactionsensitive personal data;
4.7.4 Details of the Party‟s procedures to enable Data Subjects to access their records, including audit trails, as regards access to their data;
4.7.5 Details of the Party‟s procedures which may have to be initiated when the Party suspects that a Data Subject has been or is at risk of abuse including when personal data will be shared and how it will be used;
4.7.6 Details of the Party‟s complaints procedures to follow in the event that a Data Subject believes personal information about him or her has been inappropriately disclosed;
4.7.7 Details of how personal information provided to the Party will be recorded, stored and the length of time it will be retained and on what lawful basis it is held; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any 4.7.8 Any further information which is received from the Beneficiary Member State may be reasonably required to ensure that processing in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach respect of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.Data Subject is fair.
Appears in 1 contract
Sources: Information Sharing Agreement
Undertakings. 4.1 The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as custodian's undertakings The Custodian undertakes that at all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including times during the Facility Specific Terms) have been fully paidTerm it will:
(a) (notice of default) give notice in writing to the Trustee and each Designated Rating Agency of it becoming aware of the occurrence of any Custodial Transfer Event;
(b) (compliance with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:law)
(i) maintain in effect all qualifications, consents, licenses, permits, approvals, exemptions, filings and registrations as may be required under any applicable law in order properly to perform or comply with its obligations under this Agreement;
(ii) comply with all Laws in connection with the provision of the Custodial Services where failure to do so would have a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in connection with the provision of the Custodial Services so that the Trustee does not personally or in its capacity as trustee of the Trust become liable to secure by mortgage, pledge or pay any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given Civil Penalty Payments.
(c) (Material Default) if a Material Default occurs in respect thereofto a Receivable, unless take all reasonable action to assist the Financial Assistance shall, at Servicer and the same time, share pari passu Trustee to enforce the relevant Receivable and pro rata the Receivable Rights;
(d) (Insurance Policies)
(i) act in such securityaccordance with the terms of any Mortgage Insurance Policies to the extent applicable to the Custodian; and
(ii) not do or omit to grant do anything which, or the omission of which, as the case may be, could be reasonably expected to any other creditor prejudicially affect or holder of limit its sovereign debt any priority over its obligations under this Agreement. The grant rights or the rights of the following encumbrances shall not constitute Trustee or the Servicer under or in respect of a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save Mortgage Insurance Policy to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated those rights relate to a Receivable and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessReceivable Rights;
(e) (notification) notify the Trustee, the Manager and the Servicer of any event which it reasonably believes is likely to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreementhave a Material Adverse Effect promptly after becoming aware of such event;
(f) (provide information and access on request) as soon as reasonably practicable after being requested so to pay do, provide information reasonably requested by the amount allocated by EFSF Trustee, the Manager or the Servicer, with respect to all matters relating to the Beneficiary Member State of any feesCustodial Services and upon reasonable notice and at reasonable times permit the Trustee, costs the -------------------------------------------------------------------------------- Page (9) Custodian Agreement ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ -------------------------------------------------------------------------------- Manager or the Servicer to enter the Premises and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including inspect the Data Base in relation to each Relevant Trust and the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeRelevant Documents;
(g) not (Report Record of Movements) provide the Trustee and the Manager on the last Business Day of each week a copy of an extract from the Record of Movements applicable to enter into that week's movements of Relevant Documents;
(h) (comply with other obligations) comply with all its obligations under any Transaction Document to which it is a party;
(i) (pay taxes) subject to receiving payment from, or arrange being reimbursed by, the relevant Obligor or being indemnified by the Trustee, pay all Taxes that relate to the Custodial Services (without the prior written consent of EFSF) other than any transactions Tax on, or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal measured by reference to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes income of a short term investment as contemplated under Trust or the PSI LM Facility. Where any transaction Custodian) or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request where such consent no fewer than ten (10) Business Days prior Taxes are incurred due to the date upon which default or breach of duty by the Beneficiary Member State enters intoCustodian, pay those Taxes itself or proposes ensure those Taxes are paid;
(j) (not claim) not claim any Security Interest over any Asset;
(k) (comply with Supplementary Terms Notice) comply with any undertaking specified as an additional Custodian undertaking in a relevant Supplementary Terms Notice, including, without limitation, providing the Manager with any information referred to enter intoin that Supplementary Terms Notice;
(l) (insurances) ensure that the Premises are appropriately insured for fire and public risks, any legally binding offer, agreement or arrangement in relation to such transactionand that it has appropriate directors and officers insurance; and
(hm) more generally(Data Base) maintain the Data Base collected, held or stored by it in relation to indemnify each Relevant Trust and hold harmless EFSF on first demand from each Relevant Document and, subject to all applicable laws, provide the Trustee with access to the Data Base upon reasonable request and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromduring normal business hours.
4.2 Material adverse effect
(ia) In performing the Custodial Services the Custodian shall have regard to whether what it does, or does not do, will have any information which Material Adverse Effect.
(b) The Custodian may ask the Trustee or the Manager if any action or inaction on its part is received from reasonably likely to, or will, have a Material Adverse Effect.
(c) The Custodian may rely upon any statement by the Beneficiary Member State in connection with this Agreement Trustee or the Manager that any Pre-Funding Agreementaction or inaction by the Custodian is reasonably likely to, or will, have a Material Adverse Effect.
(d) Subject to paragraph (a), the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any Custodian shall not be liable for a breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, or be liable under any Pre-Funding Agreement indemnity, in relation to any action or any Facility Specific Terms inaction on its part, where it has been notified by the Trustee or in connection with the transactions contemplated therein Manager that the action or in inaction is not reasonably likely to, or will not have a Material Adverse Effect, unless the MoU.notification was caused by the fraud, negligence or wilful default of the Custodian.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakesTrust agrees with you, in relation to General Government Debtfor your benefit, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:that: ------------
(a) The Trust shall sell Shares of the Funds so long as it has such Shares available for sale and shall cause the transfer agent (the "Transfer -------- Agent") to 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 Fund sold by you on behalf of 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 such amendment or supplement to you. Subject to the foregoing sentence, if the filing of any Prospectus or SAI, 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 exception Commission pursuant to the applicable paragraph of those encumbrances enumerated 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) 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 Subany of the foregoing, (iv) of the issuance by the Commission of any order suspending the effectiveness of any Registration Statement, or suspending the registration of the Trust under the Investment Company Act, or the institution or (to the best knowledge of the Trust) threatening of any proceeding for that purpose, and (v) of the receipt by the Trust of any notification with respect to the suspension of the qualification of the offer or sale of Shares of a Fund in any jurisdiction or the initiation or (to the best knowledge of the Trust) threatening of any proceeding for such purpose. The Trust will use its best efforts to prevent the issuance of any such order or suspension and, if issued, to obtain as soon as possible the withdrawal or suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered under the Securities Act, any event occurs as a result of which such Prospectus or SAI would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend any Registration Statement or amend or supplement any Prospectus or SAI to comply with the Securities Act, the Investment Company Act or the Rules and Regulations thereunder, the Trust will notify you promptly of any such circumstance and promptly will prepare and file with the Commission, subject to the third sentence of Section 6(a), an amendment or supplement which will correct such statement or omission or effect such compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting requirements under the Investment Company Act and the Rules and Regulations thereunder), the Trust will make generally available to its shareholders and, subject to Section 8 of this Agreement, to you (with sufficient copies for the Authorized Dealers), a report containing the financial statements required to be included in such reports under Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as many conformed copies of the Registration Statements including exhibits thereto, on each Effective Date, as you may reasonably request for yourself and for delivery to the Authorized Dealers and, so long as delivery of a Prospectus or SAI by you or any Authorized Dealer may be required by law, the number of copies of each Prospectus and each SAI as you may reasonably request for yourself and for delivery to the Authorized Dealers.
(e) To the extent required by applicable state law, the Trust will use its best efforts to arrange for the qualification of an appropriate number of the Shares of the Funds for sale under the laws of such of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, and such other jurisdiction as you and the Trust may approve, and will maintain such qualifications in effect as long as may be reasonably requested by you, provided that the Trust shall not be required in connection herewith or as a condition hereto to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction. You shall furnish such information and other material relating to your affairs and activities as may be required by the Trust in connection with such qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and, subject to Section 8 of this Agreement, the Trust, if so requested, will furnish to you, as soon as they are available (with sufficient copies for the Authorized Dealers), copies of all reports, communications and financial statements sent by the Trust to its shareholders or filed by, or on behalf of, the Trust with the Commission.
(g) The Trust agrees that on each date the Trust is required to file with the Commission a notice under paragraph (b)(1) of Rule 24f-2 under the Investment Company Act, the Trust, if so requested, shall furnish to you a copy of the opinion of counsel for the Trust required by such Rule to the effect that the Shares covered by the notice were legally issued, fully paid and nonassessable. The Trust further agrees that if, in connection with the filing of any post-paragraphs (a)(ii)(1) effective amendment to (a)(ii)(8) belowany Registration Statement after the date of this Agreement:
(i) not a change is made to secure the statements under the caption "Shares of the Fund" in any Prospectus or SAI that is deemed material by mortgageyou, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereofthe Trust, unless if so requested, shall furnish to you an opinion of counsel for the Financial Assistance shallTrust, at dated the same timedate of such post-effective amendment, share pari passu and pro rata in such security; andto the effect of paragraph 2 (to the extent it relates to the description of the Shares);
(ii) not the Fund Agreements are amended or modified in any manner, the Trust, if so requested, shall furnish to grant to any other creditor or holder you an opinion of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing counsel for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment projectTrust, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on dated the date of the signing of this Agreement, provided that such encumbrances remain confined post-effective amendment; or
(iii) any change is made to the properties presently affected thereby and properties which become affected by such encumbrances statements under contracts the caption "Taxation" in effect on any Prospectus or SAI, the Trust, if so requested, shall furnish to you an opinion of counsel for the Trust, dated the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure post-effective amendment. Any opinion or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF statement furnished pursuant to this Clause, Section 6(g) shall be modified as necessary to relate to this Agreement and the Beneficiary Member State must notify EFSF of Fund Agreements and the details of Rules and Regulations as then in effect and shall state that the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andAuthorized Dealers may rely on it.
(h) more generallyThe Trust, if so requested, shall furnish to indemnify 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 hold harmless EFSF on first demand from selected per share data and against any additional interestratios relating to such Fund, costsaddressed to you. The Trust further agrees that the Trust, claimsif so requested, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
shall furnish to you (i) any information on each date on which is received from the Beneficiary Member State 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 connection with this Agreement a form reasonably satisfactory to you describing in reasonable detail how the figures included under the captions "Portfolio Transactions" and "Performance Information" (or any Pre-Funding Agreementsimilar 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 transactions contemplated herein or 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 MoU being incorrect, inaccurate or misleading; Rules and Regulations under the Investment Company Act and (ii) any breach of on each date the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection Trust files with the transactions contemplated therein 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 MoU.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. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with Stichting Holding and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances it shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues continue to be generated by the operation of, or loss or damage to, such properties as the principal source sole director of repayment for the moneys advancedStichting Holding;
(b) it shall only resign from its position as director of Stichting Holding once a suitable person, trust or administration office, reasonably acceptable to utilise all Financial Assistance consistently the Security Trustee, has been contracted to act as director of Stichting Holding, subject to Rating Agency Confirmation;
(c) it shall manage the affairs of Stichting Holding in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice and with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) to ensure that at all times all Financial Assistance made available it and Stichting Holding will refrain from any action detrimental to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC under the Transaction Documents and shall undertake no other business, except as provided for in the Transaction Documents;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of it will not enter into any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including agreement in relation to the amounts raised CBC other than the Transaction Documents to fund the Liquidity Bufferwhich it is a party, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSFthe Security Trustee and subject to Rating Agency Confirmation;
(f) any transactions or arrangements for it shall exercise all its rights and powers as director of Stichting Holding in compliance with the acquisition, purchase or exchange Transaction Documents;
(g) it shall not as director of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require Stichting Holding engage external advisers without the prior written consent of EFSF pursuant to this Clausethe Security Trustee, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such which consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andshall not be unreasonably withheld;
(h) more generallyit shall not as director of Stichting Holding pass any resolution for the amendment of the articles of association of the CBC or the appointment of a director of the CBC, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs without the prior written consent of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromthe Security Trustee;
(i) it undertakes to procure that Stichting Holding shall be and continues to be the sole shareholder of the CBC;
(j) it shall not as director of Stichting Holding pass any information which is received from resolution (i) to issue any additional shares in the Beneficiary Member State in connection with this Agreement capital of the CBC or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach to transfer shares in the capital of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement CBC or any Facility Specific Terms; and/or (iii) to grant rights to third parties to acquire shares in the capital of the CBC or (iv) to pledge, dispose of or encumber in any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF other way the shares in connection with EFSF entering into the capital of the CBC;
(k) it shall as director of Stichting Holding exercise its voting and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or other shareholder rights and powers (if any) in connection accordance with the transactions contemplated therein CBC's obligations under the Transaction Documents and/or as otherwise instructed by the Security Trustee;
(l) it shall not novate or in amend this Agreement without the MoU.prior written consent of the Security Trustee;
(m) it shall take no action (i) to dissolve the CBC, (ii) to enter into a legal merger or legal demerger involving the CBC, (iii) to have the CBC converted into a foreign entity, (iv) to have the CBC request the court to grant a suspension of payments or (v) to have the CBC declared bankrupt;
(n) it shall take no action (i) to dissolve Stichting Holding, (ii) to enter into a legal merger or legal demerger involving Stichting Holding,
Appears in 1 contract
Sources: Management Holding Agreement
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) Manager undertakes with the exception Bank that throughout the Security Period (as such term is defined in the General Assignment dated 20 November 2007 (the “General Assignment”) executed by the Borrower in favour of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) the Bank):
4.1 the Manager will not agree or purport to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant agree to any other creditor amendment or holder of its sovereign debt any priority over its obligations under this Agreement. The grant variation of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Management Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) the Bank;
4.2 the Manager will procure that any transactions sub-manager appointed by it pursuant to the provisions of the Management Agreement will, on or arrangements for before the acquisitiondate of such appointment, purchase or exchange enter into an undertaking in favour of New Greek Bonds, directly or indirectly via the Bank of Greecein substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will not, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require without the prior written consent of EFSF pursuant to this Clausethe Bank, the Beneficiary Member State must notify EFSF take any action or institute any proceedings or make or assert any claim on or in respect of the details Ship or its policies and contracts of insurance (which expression includes all entries of the proposed transaction Ship in order a protection and indemnity or war risks association) which are from time to request time during the Security Period (as such consent no fewer than ten (10term is defined in the General Assignment) Business Days prior to in place or taken out or entered into by or for the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach benefit of the representations, warranties and/or undertakings Borrower (whether in this Agreement, any Pre-Funding Agreement the sole name of the Borrower or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into the joint names of the Borrower and the performance Bank or otherwise) in respect of this Agreement, any Pre-Funding Agreement the Ship and her Earnings (as such term is defined below) or any Facility Specific Terms or otherwise howsoever in connection with the transactions contemplated therein Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the “Insurances”) or all moneys whatsoever from time to time due or payable to the Borrower during the Security Period (as such term is defined in the MoU.General Assignment) arising out of the use or operation of the Ship including (but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship (the “Earnings”) or any other property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against the Borrower or otherwise in respect of the Ship and its Earnings, Insurances and Requisition Compensation (as such term is defined in the General Assignment) to the claims of the Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in respect of the Borrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
4.5 the Manager will discontinue any such action or proceedings or claim which may have been taken, instituted or made or asserted, promptly upon notice from the Bank to do so;
4.6 the Manager will promptly notify the Bank if at any time the amount owed by the Borrower to the Manager pursuant to the Management Agreement (whether in respect of the Manager’s remuneration or disbursements or otherwise) exceeds US$100,000 or the equivalent in other currencies; and
4.7 the Manager will provide the Bank with such information concerning the Ship as the Bank may from time to time reasonably require.
Appears in 1 contract
Sources: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. The Beneficiary Member State undertakes, in relation 5.1 Except to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due the extent permitted under this Agreement (including or the Facility Specific Terms) have been fully paid:
(a) NSS-8 Contract with respect to Permitted Spacecraft Disposals and Permitted Liens, the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) Pledgor undertakes not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (waive without the prior written consent of EFSFthe Pledgee (not to be unreasonably withheld, conditioned or delayed) any transactions accessory rights (afhankelijke rechten) or arrangements for ancillary rights (nevenrechten) attached to the acquisitionSpacecraft and in general not to perform any acts which could reasonably be expected to have, purchase individually or exchange in the aggregate, a Material Adverse Effect, including a material reduction of New Greek Bondsthe value of the Spacecraft.
5.2 Except to the extent permitted under this Agreement or the NSS-8 Contract with respect to Permitted Spacecraft Disposals and Permitted Liens, directly or indirectly via the Bank of GreecePledgor shall not, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require without the prior written consent of EFSF pursuant the Pledgee (not to this Clausebe unreasonably withheld, conditioned or delayed) transfer or further pledge or otherwise encumber the Spacecraft or agree to a court settlement or an out-of-court settlement (gerechtelijk or buitengerechtelijk akkoord) in respect of the Spacecraft.
5.3 Upon the occurrence of a Payment Default and the exercise by the Pledgee of its rights under Paragraph 19.B.3 of the NSS-8 Contract or the occurrence of an Event of Default, the Beneficiary Member State must notify EFSF Pledgor shall, at the Pledgee’s first request, provide in the English language to the Pledgee all information and supporting documentation relating to the Spacecraft and allow an independent third party designated by the Pledgee (and acceptable to the Pledgor in its reasonable discretion), following reasonable prior notice and during office hours, to inspect relevant administrative records of the details Pledgor, in each case to the extent required by the Pledgee (acting reasonably) for the purpose of confirming that the Pledgor has created, perfected and is maintaining a valid and enforceable first priority right of pledge in favour of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior Pledgee with respect to the date upon which Spacecraft. The reasonable fees (up to an amount separately agreed with both Parties acting reasonably), cost and expenses of any such independent third party designated by the Beneficiary Member State enters into, Pledgee shall be borne by the Pledgor.
5.4 The Pledgor shall forthwith inform the Pledgee of any attachment (beslag) over the Spacecraft with an individual or proposes joint value of EUR 50,000 or more. The Pledgor shall:
(i) send the Pledgee a copy of the relevant attachment or seizure documentation as well as all other documents required under applicable law for challenging the attachment or seizure (if and to enter into, any legally binding offer, agreement the extent possible);
(ii) notify the third party or arrangement the court process server acting on behalf of such third party in relation to such transactionwriting of the Pledgee’s interest over the Spacecraft; and
(hiii) more generallytake such measures as may reasonably be required to protect the Pledgee’s interest over the Spacecraft.
5.5 The Pledgor covenants for the benefit of the Pledgee throughout the Security Period that it will co-operate with the Pledgee in the collection and recovery of the Spacecraft and render all reasonable assistance as may be required pursuant to any exchange regulations and/or foreign statutory rules or other rules, to indemnify and hold harmless EFSF on first demand from and against including the taking of any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from action that the Beneficiary Member State Pledgee may deem necessary in connection with this Agreement or any Pre-Funding Agreementtherewith, in each case after the issuance of a Default Notice to it
5.6 In addition and without prejudice to the obligations of the Pledgor pursuant to Clauses 5.3 and 5.4 above, the transactions contemplated herein Pledgor shall notify the Pledgee promptly of any event or circumstance which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, including a material reduction of the value of the Spacecraft or otherwise cause an Event of Default.
5.7 The Pledgor shall, at its own expense, in accordance with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance terms of this Agreement, (i) keep and maintain the Spacecraft in good condition (reasonable wear and tear excepted), take care of and handle the same in a careful and diligent manner, using normal operating procedures in accordance with, including but not limited to, the Recommended Operating Procedures (ROPs) provided by the Pledgee (as may be modified and changed from time to time by the Pledgee) and procure that its staff and other persons to whom it delegates its duties and responsibilities in respect of the Spacecraft, shall do likewise, and (ii) not intentionally perform any Pre-Funding Agreement or any Facility Specific Terms or act which could reasonably be expected to result in connection with a material reduction of the transactions contemplated therein or in value of the MoU.Spacecraft.
Appears in 1 contract
Sources: NSS 8 Spacecraft and Associated Equipment and Services Contract (New Skies Satellites Holdings Ltd.)
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) Manager undertakes with the exception Bank that throughout the Security Period (as such term is defined in the general assignment dated [·] 2007 (the “General Assignment”) and executed by the Owner in favour of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) the Bank):
4.1 the Manager will not agree or purport to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant agree to any other creditor material amendment or holder of its sovereign debt any priority over its obligations under this Agreement. The grant variation of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Management Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) the Bank;
4.2 the Manager will procure that any transactions sub-manager appointed by the Manager pursuant to the provisions of the Management Agreement or arrangements for otherwise will, on or before the acquisition, purchase or exchange date of New Greek Bonds, directly or indirectly via such appointment enter into an undertaking in favour of the Bank of Greecein substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will not, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require without the prior written consent of EFSF pursuant to this Clausethe Bank, the Beneficiary Member State must notify EFSF take any action or institute any proceedings or make or assert any claim on or in respect of the details Ship or its policies and contracts of insurance (which expression includes all entries of the proposed transaction Ship in order a protection and indemnity or war risks association) which are from time to request time during the Security Period (as such consent no fewer than ten (10term is defined in the General Assignment) Business Days prior to in place or taken out or entered into by or for the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach benefit of the representations, warranties and/or undertakings Owner (whether in this Agreement, any Pre-Funding Agreement the sole name of the Owner or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into the joint names of the Owner and the performance Bank or otherwise) in respect of this Agreement, any Pre-Funding Agreement the Ship and her Earnings (as such term is defined below) or any Facility Specific Terms or otherwise howsoever in connection with the transactions contemplated therein Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (the “Insurances”) or any moneys whatsoever from time to time due or payable to the Owner during the Security Period (as such term is defined in the MoU.General Assignment) arising out of the use or operation of the Ship including (but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Owner in event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship (the “Earnings”) or any other property or other assets of the Owner which the Bank has previously advised the Manager are subject to any Encumbrance (as such term is defined in the General Assignment) or right of set-off in favour of the Bank by virtue of any of the Security Documents;
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) Manager undertakes with the exception Bank that throughout the Security Period (as such term is defined in the General Assignment dated 20 November 2007 (the "General Assignment") executed by the Borrower in favour of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) the Bank):
4.1 the Manager will not agree or purport to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant agree to any other creditor amendment or holder of its sovereign debt any priority over its obligations under this Agreement. The grant variation of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Management Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) the Bank;
4.2 the Manager will procure that any transactions sub-manager appointed by it pursuant to the provisions of the Management Agreement will, on or arrangements for before the acquisitiondate of such appointment, purchase or exchange enter into an undertaking in favour of New Greek Bonds, directly or indirectly via the Bank of Greecein substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will not, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require without the prior written consent of EFSF pursuant to this Clausethe Bank, the Beneficiary Member State must notify EFSF take any action or institute any proceedings or make or assert any claim on or in respect of the details Ship or its policies and contracts of insurance (which expression includes all entries of the proposed transaction Ship in order a protection and indemnity or war risks association) which are from time to request time during the Security Period (as such consent no fewer than ten (10term is defined in the General Assignment) Business Days prior to in place or taken out or entered into by or for the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach benefit of the representations, warranties and/or undertakings Borrower (whether in this Agreement, any Pre-Funding Agreement the sole name of the Borrower or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into the joint names of the Borrower and the performance Bank or otherwise) in respect of this Agreement, any Pre-Funding Agreement the Ship and her Earnings (as such term is defined below) or any Facility Specific Terms or otherwise howsoever in connection with the transactions contemplated therein Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the "Insurances") or all moneys whatsoever from time to time due or payable to the Borrower during the Security Period (as such term is defined in the MoU.General Assignment) arising out of the use or operation of the Ship including (but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charter party or other contract for the employment of the Ship (the "Earnings") or any other property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against the Borrower or otherwise in respect of the Ship and its Earnings, Insurances and Requisition Compensation (as such term is defined in the General Assignment) to the claims of the Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in respect of the Borrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
Appears in 1 contract
Sources: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with Stichting Holding and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances it shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues continue to be generated by the operation of, or loss or damage to, such properties as the principal source sole director of repayment for the moneys advancedStichting Holding;
(b) it shall only resign from its position as director of Stichting Holding once a suitable person, trust or administration office, reasonably acceptable to utilise all Financial Assistance consistently the Security Trustee, has been contracted to act as director of Stichting Holding, subject to Rating Agency Confirmation;
(c) it shall manage the affairs of Stichting Holding in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice and with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) to ensure that at all times all Financial Assistance made available it and Stichting Holding will refrain from any action detrimental to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC under the Transaction Documents and shall undertake no other business, except as provided for in the Transaction Documents;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of it will not enter into any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including agreement in relation to the amounts raised CBC other than the Transaction Documents to fund the Liquidity Bufferwhich it is a party, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSFthe Security Trustee and subject to Rating Agency Confirmation;
(f) any transactions or arrangements for it shall exercise all its rights and powers as director of Stichting Holding in compliance with the acquisition, purchase or exchange Transaction Documents;
(g) it shall not as director of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require Stichting Holding engage external advisers 53106437 M 55004893 / 3 without the prior written consent of EFSF pursuant to this Clausethe Security Trustee, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such which consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andshall not be unreasonably withheld;
(h) more generallyit shall not as director of Stichting Holding pass any resolution for the amendment of the articles of association of the CBC or the appointment of a director of the CBC, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs without the prior written consent of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result fromthe Security Trustee;
(i) it undertakes to procure that Stichting Holding shall be and continues to be the sole shareholder of the CBC;
(j) it shall not as director of Stichting Holding pass any information which is received from resolution (i) to issue any additional shares in the Beneficiary Member State in connection with this Agreement capital of the CBC or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach to transfer shares in the capital of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement CBC or any Facility Specific Terms; and/or (iii) to grant rights to third parties to acquire shares in the capital of the CBC or (iv) to pledge, dispose of or encumber in any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF other way the shares in connection with EFSF entering into the capital of the CBC;
(k) it shall as director of Stichting Holding exercise its voting and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or other shareholder rights and powers (if any) in connection accordance with the transactions contemplated therein CBC's obligations under the Transaction Documents and/or as otherwise instructed by the Security Trustee;
(l) it shall not novate or in amend this Agreement without the MoU.prior written consent of the Security Trustee;
(m) it shall take no action (i) to dissolve the CBC, (ii) to enter into a legal merger or legal demerger involving the CBC, (iii) to have the CBC converted into a foreign entity, (iv) to have the CBC request the court to grant a suspension of payments or (v) to have the CBC declared bankrupt;
(n) it shall, as director of the Stichting Holding, take no action to enter into negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general composition for the benefit of its creditors (buitengerechtelijk akkoord) or a forced general composition approved by the relevant court (dwangakkoord buiten faillissement of surseance van betaling); 53106437 M 55004893 / 3 (o) it shall take no action (i) to dissolve Stichting Holding, (ii) to enter into a legal merger or legal demerger involving Stichting Holding,
Appears in 1 contract
Sources: Management Holding Agreement
Undertakings. 17.1 The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed Client undertakes and all interest and additional amounts, if any, due under this Agreement (including agrees with the Facility Specific Terms) have been fully paid:Bank that the Client will: -
(a) with at the exception Client's own cost and expense, perform punctually and fully all its obligations under the Contracts of those encumbrances enumerated in Sub-paragraphs Sale and at the Bank's request, provide satisfactory evidence of complete performance of the Contracts of Sale;
(a)(ii)(1b) immediately disclose to (a)(ii)(8) belowthe Bank:
(i) not to secure by mortgage, pledge any change or any other encumbrance upon contemplated change in the control or ownership of the Client or its own assets business or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; andtrading name;
(ii) not details of any Insolvency action or proceedings threatened or pending against the Client or the Customer;
(iii) any material information about the creditworthiness and financial position of a Customer and such other information of a Customer as the Bank requires;
(iv) any material change in the information provided by the Client to grant to any other creditor or holder of its sovereign debt any priority over its obligations the Bank under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(bv) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date occurrence of the Request for Funds applicable to such Financial Assistanceany event which may cause non-payment of a Debt when due;
(c) not (i) grant any discount, allowance or credit to obtain a Customer; (ii) change to a less secured payment term of any Debt; (iii) extend the due date for payment of any Debt; and/or (iv) waive all or part of the Debt or give up any of the Client’s rights or guarantees, in respect of all or any part of the Debt unless with the Bank's consent and maintain will not issue or agree with the Customer to issue any credit note against the Debt if the Bank has notified the Client not to do so;
(d) in the case of any credit note issued by the Client, promptly notify the Bank of the details of the credit note;
(e) use best endeavours to ensure the due and punctual payment by Customers to the Bank or the Assignee of all Debts and at the request of the Bank, take all reasonable steps as required by the Bank for recovery of the Debts;
(f) ensure that Notified Value of each Debt shall be the same as the Net Invoice Amount of such Debt at the time of Notification by the Client;
(g) in the case of cash against documents sales approved by the Bank, retain full control over the Goods (and their title documents) prior to payment by the Customer;
(h) ensure that no details relating to any request for a Credit Cover Limit or the Bank's response to such request shall be disclosed to the relevant Customer or any other person;
(i) comply with any procedures which the Bank communicates to the Client for the day- to-day operation of the services and/or transactions contemplated under this Agreement;
(j) not amend or permit any amendment to the terms of any Contract of Sale or the relevant invoice without the Bank's prior written consent;
(k) promptly inform the Bank of any Termination Event or prospective Termination Event or any payment default or financial difficulties of any Customer;
(l) promptly take such actions at its own expense to perfect and protect the rights, powers and interest of the Bank under this Agreement and promptly take such steps as the Bank may require for facilitating the protection, exercise or enforcement of any right or power of the Bank under this Agreement;
(m) use due care and diligence and take all measures to prevent and minimize the loss caused by any actual or prospective non-payment by the Customer in respect of the Debts (including, ensuring that all rights against the Goods, the Customers and third parties are properly preserved and exercised);
(n) promptly execute all such documents, and do all such things as the Bank may require in respect of any Debt in order to perfect the Bank's or the Assignee's ownership of the Debts or to protect or enforce the Bank's or the Assignee's rights over the Debts;
(o) not sell, assign, transfer, discount, charge or otherwise dispose of any of its rights, title or interest in and to any Contract of Sale or any Debt (whether existing now or arising in the future) except pursuant to this Agreement or in favour of the Bank;
(p) comply with all data protection, privacy and similar laws applicable to any information relating to the Customers and the Debts and will take all reasonable actions appropriate under such laws to enable and facilitate the Bank to use, process and transfer such information;
(q) keep proper books and records of account and make appropriate entries in them to show the sale to the Bank of the Debts;
(r) not enter into any agreement for the factoring or discounting or otherwise for the sale or assignment of any Debt except with the Bank;
(s) ensure that any distribution, franchise or similar arrangement between the Client and the Customer shall remain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including such arrangement shall not be terminated without prior written consent of the Facility Specific Terms) and each Pre-Funding AgreementBank;
(dt) to ensure that at all times all Financial Assistance made available to not accept any reduction, compromise, settlement, agreement, composition, rescheduling of Debts or Returned Goods unless with the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessBank’s prior written consent;
(eu) file all necessary tax returns in relation to comply in any Goods or any Contract of Sale, and promptly pay all respects with applicable laws which might affect its ability taxes adjudicated to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;be payable on such returns; and
(fv) not take or omit to pay the amount allocated by EFSF to the Beneficiary Member State of take any fees, costs and expenses, including in particular Issuance Costs, breakage action which will reduce or termination costs, and Cost of Carry incurred impede full recoveries in respect of any Funding Instruments Debt and will not do or hedging contract omit to do anything which EFSF may have undertaken (including would prejudice the interest of the Bank or the Assignee in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision respect of any Financial Assistance Debt or any utilisation under a Facility takes place;the effectiveness of this Agreement.
(gw) while any Debt is outstanding, it will maintain operational procedures to ensure that it does not breach any Sanction or other law or regulation applicable to enter into or arrange it.
(without x) the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via Client will promptly notify the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State circumstance in connection with this Agreement a Debt that may relate to money laundering, terrorist financing, bribery, corruption, tax evasion or Sanctions.
17.2 The Client shall provide the Bank with its audited financial statements for each financial year as soon as they are available but in any Pre-Funding Agreement, event within 180 days after the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach end of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance each of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.its financial year.
Appears in 1 contract
Sources: Invoice Discounting / Factoring Agreement (Jerash Holdings (US), Inc.)
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with the CBC and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) subject to (a)(ii)(8) below:
(i) not to secure by mortgageClause 8.2 and 8.3, pledge or any other encumbrance upon it shall only resign from its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant position as director of the following encumbrances shall not constitute CBC as soon as a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal suitable person, trust or extension of any such encumbrance which is limited administration office, reasonably acceptable to the original property covered thereby and which secures any renewal or extension Security Trustee, after having consulted the Secured Creditors, other than the Covered Bondholders, has been contracted to act as director of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) CBC subject to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedRating Agency Confirmation;
(b) to utilise all Financial Assistance consistently the CBC shall undertake no other business, except as provided for in the Transaction Documents, until the CBC no longer has any actual or contingent liabilities under any of the Transaction Documents and any Covered Bonds;
(c) it shall manage the affairs of the CBC in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice with the same has been modified care it exercises or supplemented as at would exercise the date administration of similar matters whether held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) it shall continue to ensure that at all times all Financial Assistance made available to be the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation sole director of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC;
(e) it shall as director of the CBC not (i) agree to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State any alteration of any feesagreement including, costs and expensesbut not limited to, including in particular Issuance Coststhe Transaction Documents, breakage to which the CBC is a party or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operationsii) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (any agreement in each case without the prior written consent of EFSFthe Security Trustee and in accordance with any other requirements in any of the Transaction Documents;
(f) it and the CBC shall refrain from taking any transactions action detrimental to the CBC's rights and obligations under or arrangements in connection with the Transaction Documents;
(g) it shall exercise all its rights and/or powers as director of the CBC in compliance with the Transaction Documents;
(h) it shall procure that the CBC will at all times fulfil and comply with its obligations under each Transaction Document to which it is or will become a party, provided that to the extent that such obligations are contingent or dependent for their performance on the acquisitiondue performance by any other party of its obligations and undertakings under any Transaction Document, purchase or exchange such other party duly performs such obligations and undertakings thereunder;
(i) it shall not, as director of New Greek Bondsthe CBC, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require engage external advisers without the prior written consent of EFSF pursuant the Security Trustee, which consent shall not be unreasonably withheld and which consent shall be presumed to this Clause, have been given if the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten Security Trustee will not have replied within five (105) Business Days prior to from the date upon which of the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andwritten request from the CBC;
(hj) more generallyit shall not, to indemnify and hold harmless EFSF on first demand from and against any additional interestas director of the CBC, costsnovate or amend this Agreement without the prior written consent of the Security Trustee;
(k) it shall not, claimsas director of the CBC, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
take action (i) any information which is received from to dissolve (ontbinden) the Beneficiary Member State in connection with this Agreement CBC, or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of to enter into a legal merger (juridische fusie) or legal demerger (juridische splitsing) involving the representationsCBC, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or or
(iii) to have the CBC converted (conversie) into a foreign entity, or
(iv) to have the CBC request the court to grant a suspension of payments (surseance van betaling), or (v) to have the CBC declared bankrupt (failliet), without the prior written consent of the Security Trustee;
(l) it shall as director of the CBC take no action to enter into negotiations with any action, claim, demand, proceeding, investigation, arbitration one or judgment brought against EFSF in connection more of its creditors with EFSF entering into and a view to the performance general readjustment or rescheduling of this Agreement, any Pre-Funding Agreement its indebtedness or any Facility Specific Terms makes a general composition for the benefit of its creditors (buitengerechtelijk akkoord) or in connection with a forced general composition approved by the transactions contemplated therein or in the MoU.relevant court (dwangakkoord buiten faillissement of surseance van betaling); or
Appears in 1 contract
Sources: Management Agreement
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) Manager undertakes with the exception Bank that throughout the Security Period (as such term is defined in the General Assignment dated 20 November 2007 (the "General Assignment") executed by the Borrower in favour of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) the Bank):
4.1 the Manager will not agree or purport to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant agree to any other creditor amendment or holder of its sovereign debt any priority over its obligations under this Agreement. The grant variation of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Management Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) the Bank;
4.2 the Manager will procure that any transactions sub-manager appointed by it pursuant to the provisions of the Management Agreement will, on or arrangements for before the acquisitiondate of such appointment, purchase or exchange enter into an undertaking in favour of New Greek Bonds, directly or indirectly via the Bank of Greecein substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will not, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require without the prior written consent of EFSF pursuant to this Clausethe Bank, the Beneficiary Member State must notify EFSF take any action or institute any proceedings or make or assert any claim on or in respect of the details Ship or its policies and contracts of insurance (which expression includes all entries of the proposed transaction Ship in order a protection and indemnity or war risks association) which are from time to request time during the Security Period (as such consent no fewer than ten (10term is defined in the General Assignment) Business Days prior to in place or taken out or entered into by or for the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach benefit of the representations, warranties and/or undertakings Borrower (whether in this Agreement, any Pre-Funding Agreement the sole name of the Borrower or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into the joint names of the Borrower and the performance Bank or otherwise) in respect of this Agreement, any Pre-Funding Agreement the Ship and her Earnings (as such term is defined below) or any Facility Specific Terms or otherwise howsoever in connection with the transactions contemplated therein Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the "Insurances") or all moneys whatsoever from time to time due or payable to the Borrower during the Security Period (as such term is defined in the MoU.General Assignment) arising out of the use or operation of the Ship including (but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charter party or other' contract for the employment of the Ship (the "Earnings") or any other property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against the Borrower or otherwise in respect of the Ship and its Earnings, Insurances and Requisition Compensation (as such term is defined in the General Assignment) to the claims of the Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in respect of the Borrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
4.5 the Manager will discontinue any such action or proceedings or claim which may have been taken, instituted or made or asserted, promptly upon notice from the Bank to do so;
4.6 the Manager will promptly notify the Bank if at any time the amount owed by the Borrower to the Manager pursuant to the Management Agreement (whether in respect of the Manager's remuneration or disbursements or otherwise) exceeds US$100,000 or the equivalent in other currencies; and
4.7 the Manager will provide the Bank with such information concerning the Ship as the Bank may from time to time reasonably require.
Appears in 1 contract
Sources: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without Without the prior written consent of EFSFthe Lender you and your subsidiaries (other than the Surviving Entity, as defined below) will not (a) create or permit to subsist any transactions mortgage, charge or arrangements for other encumbrance (each a "LIEN") over any of your or their assets (including, without limitation, the acquisitionshares of stock of the Surviving Entity) other than Liens in favor of the Lender; (b) permit any disposals or leases (by one or a series of transactions) of all or a substantial part of your or their business or assets; (c) permit any material change in the nature of your or their business as now conducted; (d) incur or permit to exist any indebtedness other than in favor of the Lender; (e) declare or pay any dividends or other distributions to your shareholders other than dividends or distributions consisting solely of capital stock of the Borrower and, purchase so long as no Event of Default has occurred and is continuing, dividends required under the terms of the Mandatorily Redeemable Preferred Stock; or exchange (f) redeem any of New Greek Bondsthe Mandatorily Redeemable Preferred Stock. For the avoidance of doubt, directly except as set forth in the following two sentences, nothing in this Letter-Loan Agreement shall restrict the Acquisition Company or indirectly via Getty. You will (w) acquire all of the Bank shares of Greececapital stock of Getty in accordance with the Merger Agreement; (x) cause the Acquisition Company and any subsidiaries of the Acquisition Company (the "ADDITIONAL MERGER SUBSIDIARIES") to be merged with Getty pursuant to the Merger Agreement; (y) execute and deliver such further documents and take such further acts as may be reasonably requested by the Lender to grant the Lender security over the shares of the surviving entity (the "SURVIVING ENTITY") promptly upon the merger of the Acquisition Company, any affiliate or agent or Additional Merger Subsidiaries, and Getty pursuant to the Merger Agreement; and (z) from time to time cause the Surviving Entity to declare and pay such dividends as may be necessary to enable you to make any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for payment required under this Letter-Loan Agreement. Without the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant the Lender you will not permit the Surviving Entity to this Clause, incur or permit to remain outstanding indebtedness for borrowed money in an aggregate principal amount in excess of US$20,000,000 or the Beneficiary Member State must notify EFSF equivalent in any other currency. Without the consent of Oil Company LUKOIL you will not create or permit to subsist any Lien over any of the details assets of the proposed transaction in order to request such consent no fewer Surviving Entity other than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from Liens on the Beneficiary Member State in connection with this Agreement assets of the Surviving Entity existing at the time of acquisition by the Borrower or any Pre-Funding Agreementsubsidiary of the Borrower of any interest in Getty, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach statutory liens arising by operation of the representationslaw, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF purchase money security interests in connection with EFSF entering into and fuel acquired by the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or Surviving Entity in the MoU.ordinary course of its retail business, and (iv) other Liens securing indebtedness for money borrowed by the Surviving Entity in an aggregate amount not greater than $5,000,000.
Appears in 1 contract
Undertakings. 3.1 The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including Issuer undertakes with the Facility Specific Terms) have been fully paidJoint Lead Managers that:
(a) with it will on or before the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless Closing Date execute the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this First Supplemental Agency Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently it will bear and pay (i) any stamp or other duties or taxes on or in connection with the Decision as issue and delivery of the Notes and the execution and delivery of this Agreement and the First Supplemental Agency Agreement (together the Agreements) and (ii) any value added tax payable in force at the relevant time and in accordance connection with the MoU as commission or other amounts payable or allowed under this Agreement and otherwise in connection with the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistancetransactions envisaged by this Agreement;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under will not, between the date of this Agreement and the Closing Date (including both dates inclusive), without the Facility Specific Terms) prior approval of the Joint Lead Managers, make any announcement which could have a material adverse effect on the marketability of the Notes, unless the Issuer is required to make any such announcement under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a regulatory agency having competent jurisdiction over the Issuer, in which case the Issuer shall use its best endeavours to notify and each Pre-Funding Agreementconsult with the Joint Lead Managers in advance;
(d) to ensure that at all times all Financial Assistance made available it will deliver to the Beneficiary Member State under Joint Lead Managers, without charge, on the Facilities shall constitute an unsecured date of this Agreement (save or as soon as reasonably practicable thereafter), and from time to time, such number of copies of the Prospectus as the Joint Lead Managers may reasonably request, and will give to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation Joint Lead Managers on the date hereof a copy of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations Prospectus signed by a duly authorised officer of the Beneficiary Member State arising from its present or future Relevant IndebtednessIssuer;
(e) it will not make any amendment or supplement to comply the Prospectus without the prior consent of the Joint Lead Managers (such consent not to be unreasonably withheld or delayed), unless the Issuer is required to make any such amendment or supplement to the Prospectus under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a regulatory agency having competent jurisdiction over the Issuer, in all respects which case the Issuer shall use its best endeavours to notify and consult with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding AgreementJoint Lead Managers in advance;
(f) so long as any of the Notes remains outstanding, the Issuer will furnish to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costsML, and Cost to each other Joint Lead Manager who may so request in writing, copies of Carry incurred in respect each document filed by the Issuer with the Commission de Surveillance du Secteur Financier (the CSSF) or Euronext Amsterdam by NYSE Euronext (Euronext Amsterdam), and copies of any Funding Instruments or hedging contract which EFSF financial statements and other periodic reports that the Issuer may have undertaken (including in relation furnish generally to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless holders of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeits debt securities;
(g) it will use the net proceeds received by it from the issue of the Notes in the manner specified in the Prospectus;
(h) it will ensure that proceeds raised in connection with the issue of the Notes will not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via be lent, contributed or otherwise made available to any person or entity (whether or not related to the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement Issuer) for the acquisition, purchase purpose of financing the activities of any person or exchange of New Greek Bonds is for the purposes benefit of a short term investment as contemplated under any country currently subject to any U.S. sanctions administered by the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent Office of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF Foreign Assets Control of the details U.S. Department of the proposed transaction in order to request such consent no fewer than ten Treasury (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionOFAC); and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from it will use all reasonable endeavours to procure the Beneficiary Member State delivery of a certificate of approval by the CSSF to the competent authority in connection with this Agreement or any Pre-Funding Agreement, The Netherlands and will promptly notify the transactions contemplated herein or with Joint Lead Managers following receipt by the MoU being incorrect, inaccurate or misleading; (ii) any breach Issuer of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance confirmation that such certificate of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.approval has been so delivered.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakes3.1 Subject to Clause 3.3 and provided that: (i) the terms set out in the Term Sheet are in all material respects reflected in the terms of each of the Cayman Scheme and the HK Scheme; (ii) no terms of either the Cayman Scheme or the HK Scheme are in any material respect inconsistent with the terms set out in the Term Sheet; and (iii) the terms of each of the Cayman Scheme and the HK Scheme (other than terms which reflect the terms set out in the Term Sheet) are: (x) terms which would customarily be included in a Cayman Islands or Hong Kong (as the case may be) scheme of arrangement of a nature similar to that of the Cayman Scheme and the HK Scheme; or (y) terms which are no less favourable to the Consenting Creditor than the terms referred to in (x) above, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including further provided that the Facility Specific Terms) Cooperation Agreements have been fully paidterminated, the Consenting Creditor irrevocably undertakes in favour of the Issuer and the Subsidiary Guarantors that it shall (or, as applicable, will procure that a duly authorised representative, proxy or nominee will), solely in its capacity as a holder of the Convertible Note, upon receipt by the Consenting Creditor of a written request from the Issuer reasonably in advance of the action requested:
(a) attend the Cayman Scheme Meeting and the HK Scheme Meeting either in person or by proxy; and
(b) exercise all of its voting rights (whether by way of providing voting instructions to a proxy, instructing a representative to vote in person, or otherwise) attributable to such principal amount of the Convertible Note in which it holds a direct or beneficial interest as principal at the Record Time in favour of approving the Cayman Scheme and the HK Scheme.
3.2 Subject to Clause 3.3 and provided that: (i) the terms set out in the Term Sheet are in all material respects reflected in the terms of each of the Cayman Scheme and the HK Scheme; (ii) no terms of either the Cayman Scheme or the HK Scheme are in any material respect inconsistent with the exception terms set out in the Term Sheet; and (iii) the terms of those encumbrances enumerated each of the Cayman Scheme and the HK Scheme (other than terms which reflect the terms set out in Sub-paragraphs the Term Sheet) are: (a)(ii)(1x) terms which would customarily be included in a Cayman Islands or Hong Kong (as the case may be) scheme of arrangement of a nature similar to that of the Cayman Scheme and the HK Scheme; or (y) terms which are no less favourable to the Consenting Creditor than the terms referred to in (x) above, and further provided that the Cooperation Agreements have been terminated, the Consenting Creditor irrevocably undertakes in favour of the Issuer and the Subsidiary Guarantors that it shall not, in its capacity as a holder of the Convertible Note:
(a) object to or challenge the Cayman Scheme, the HK Scheme or any application to the Cayman Court or the High Court in respect thereof or otherwise commence any proceeding(s) to oppose or alter any Scheme Document filed by the Issuer and/or the Subsidiary Guarantors in connection with the confirmation of the Restructuring;
(a)(ii)(8b) belowtake, encourage, assist or support (or procure that any other person takes, encourages, assists or supports) any action for the purpose of frustrating, delaying, impeding or preventing the Cayman Scheme, the HK Scheme or the Restructuring, including (without limitation):
(i) proposing or supporting any alternative proposal or offer from any person or entity (other than the Issuer) in respect of the Restructuring which is materially inconsistent with the terms set out in the Term Sheet; or
(ii) voting (or directing any proxy appointed by it to vote) the Convertible Note in which it holds a direct or beneficial interest as principal against the Cayman Scheme, the HK Scheme or in favour of any amendment, waiver, consent or proposal that is materially inconsistent with the terms set out in the Term Sheet; or
(iii) transfer or agree to transfer any Convertible Note in which the Consenting Creditor has a direct or beneficial interest as principal (including, without limitation, any Convertible Note purchased or otherwise acquired by the Consenting Creditor after the date of this Agreement) unless the transferee(s) provide(s) similar undertakings set out in this Agreement in favour of the Issuer and the Subsidiary Guarantors.
3.3 Nothing in this Agreement shall require the Consenting Creditor to take, or omit to take, any action that would:
(a) be contrary to any Applicable Law;
(b) result in the Consenting Creditor (or any of its Affiliates) incurring any Liability, other than as expressly contemplated by this Agreement; or
(c) give rise, or be reasonably likely to give rise, to any result that is materially adverse to the interest of the Consenting Creditor or any of its Affiliates.
3.4 Each of the Issuer and the Subsidiary Guarantors undertakes in favour of the Consenting Creditor that it shall (or, as applicable, will procure that a duly authorised representative, proxy or nominee will) perform all actions as are reasonably necessary in order to support, facilitate, implement or otherwise give effect to the Restructuring (provided that such action is consistent in all material respects with the Term Sheet) as soon as reasonably practicable, including (without limitation) to:
(a) pay or procure payments of (as applicable) the Instruction Fee:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such securityaccordance with Clause 4 (Instruction Fee); and
(ii) not in immediately available funds free and clear of and without any deduction or withholding for or on account of Tax unless it is required to grant to any other creditor make such a deduction or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of withholding, in which case the following encumbrances Instruction Fee payable shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited be increased to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations extent necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available the sum net of any deduction or withholding received by the Consenting Creditor is equal to the Beneficiary Member State under the Facilities shall constitute an unsecured (save sum which it would have received had no such deduction or withholding been made or required to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtednessbe made;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including 3.1 Issuer undertakes with the Facility Specific Terms) have been fully paidJoint Lead Managers that:
(a) with it will on or before the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless Closing Date execute the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agency Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently it will bear and pay (i) any stamp or other duties or taxes on or in connection with the Decision as issue and delivery of the Notes and the execution and delivery of this Agreement and the Agency Agreement (together the Agreements) and (ii) any value added tax payable in force at the relevant time and in accordance connection with the MoU as commission or other amounts payable or allowed under this Agreement and otherwise in connection with the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistancetransactions envisaged by this Agreement;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under will not, between the date of this Agreement and the Closing Date (including both dates inclusive), without the Facility Specific Terms) prior approval of the Joint Lead Managers, make any announcement which could have a material adverse effect on the marketability of the Notes, unless the Issuer is required to make any such announcement under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a regulatory agency having competent jurisdiction over the Issuer, in which case the Issuer shall use its best endeavours to notify and each Pre-Funding Agreementconsult with the Joint Lead Managers in advance;
(d) to ensure that at all times all Financial Assistance made available it will deliver to the Beneficiary Member State under Joint Lead Managers, without charge, on the Facilities shall constitute an unsecured date of this Agreement (save or as soon as reasonably practicable thereafter), and from time to time, such number of copies of the Prospectus as the Joint Lead Managers may reasonably request, and will give to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation Joint Lead Managers on the date hereof a copy of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations Prospectus signed by a duly authorised officer of the Beneficiary Member State arising from its present or future Relevant IndebtednessIssuer;
(e) it will not make any amendment or supplement to comply the Prospectus without the prior consent of the Joint Lead Managers (such consent not to be unreasonably withheld or delayed), unless the Issuer is required to make any such amendment or supplement to the Prospectus under applicable law, regulation, listing requirement or order from a court or pursuant to an administrative demand or request of a regulatory agency having competent jurisdiction over the Issuer, in all respects which case the Issuer shall use its best endeavours to notify and consult with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding AgreementJoint Lead Managers in advance;
(f) so long as any of the Notes remains outstanding, the Issuer will furnish to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costsABN AMRO, and Cost to each other Joint Lead Manager who may so request in writing, copies of Carry incurred in respect each document filed by the Issuer with the Commission de Surveillance du Secteur Financier (the CSSF), and copies of any Funding Instruments or hedging contract which EFSF financial statements and other periodic reports that the Issuer may have undertaken (including in relation furnish generally to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless holders of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeits debt securities;
(g) it will use the net proceeds received by it from the issue of the Notes in the manner specified in the Prospectus;
(h) it will ensure that proceeds raised in connection with the issue of the Notes will not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via be lent, contributed or otherwise made available to any person or entity (whether or not related to the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement Issuer) for the acquisition, purchase purpose of financing the activities of any person or exchange of New Greek Bonds is for the purposes benefit of a short term investment as contemplated under any country currently subject to any U.S. sanctions administered by the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent Office of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF Foreign Assets Control of the details U.S. Department of the proposed transaction in order to request such consent no fewer than ten Treasury (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionOFAC); and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from it will use all reasonable endeavours to procure the Beneficiary Member State delivery of a certificate of approval by the CSSF to the competent authority in connection with this Agreement or any Pre-Funding Agreement, The Netherlands and will promptly notify the transactions contemplated herein or with Joint Lead Managers following receipt by the MoU being incorrect, inaccurate or misleading; (ii) any breach Issuer of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance confirmation that such certificate of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.approval has been so delivered.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) Manager undertakes with the exception Bank that throughout the Security Period (as such term is defined in the General Assignment dated 1 March 2006 (the “General Assignment”) executed by the Borrower in favour of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) the Bank):
4.1 the Manager will not agree or purport to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant agree to any other creditor amendment or holder of its sovereign debt any priority over its obligations under this Agreement. The grant variation of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Management Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) the Bank;
4.2 the Manager will procure that any transactions sub-manager appointed by it pursuant to the provisions of the Management Agreement will, on or arrangements for before the acquisitiondate of such appointment, purchase or exchange enter into an undertaking in favour of New Greek Bonds, directly or indirectly via the Bank of Greecein substantially the same form (mutatis mutandis) as this Letter;
4.3 the Manager will not, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require without the prior written consent of EFSF pursuant to this Clausethe Bank, the Beneficiary Member State must notify EFSF take any action or institute any proceedings or make or assert any claim on or in respect of the details Ship or its policies and contracts of insurance (which expression includes all entries of the proposed transaction Ship in order a protection and indemnity or war risks association) which are from time to request time during the Security Period (as such consent no fewer than ten (10term is defined in the General Assignment) Business Days prior to in place or taken out or entered into by or for the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach benefit of the representations, warranties and/or undertakings Borrower (whether in this Agreement, any Pre-Funding Agreement the sole name of the Borrower or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into the joint names of the Borrower and the performance Bank or otherwise) in respect of this Agreement, any Pre-Funding Agreement the Ship and her Earnings (as such term is defined below) or any Facility Specific Terms or otherwise howsoever in connection with the transactions contemplated therein Ship and all benefits thereof (including claims of whatsoever nature and return of premiums) (together the “Insurances”) or all moneys whatsoever from time to time due or payable to the Borrower during the Security Period (as such term is defined in the MoU.General Assignment) arising out of the use or operation of the Ship including (but without limiting the generality of the foregoing) all freight, hire and passage moneys, income arising under pooling arrangements, compensation payable to the Borrower in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys, and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship (the “Earnings”) or any other property or other assets of the Borrower which the Bank has previously advised the Manager are subject to any Encumbrance or right of set-off in favour of the Bank by virtue of any of the security documents executed in favour of the Bank pursuant to the Loan Agreement;
4.4 the Manager does hereby subordinate any claim that it may have against the Borrower or otherwise in respect of the Ship and its Earnings, Insurances and Requisition Compensation (as such term is defined in the General Assignment) to the claims of the Bank under the Loan Agreement and the other Security Documents and undertakes to exercise no right to which it may be entitled in respect of the Borrower and/or the Ship and/or its Earnings and/or Insurances and/or Requisition Compensation in competition with the Bank;
4.5 the Manager will discontinue any such action or proceedings or claim which may have been taken, instituted or made or asserted, promptly upon notice from the Bank to do so;
4.6 the Manager will promptly notify the Bank if at any time the amount owed by the Borrower to the Manager pursuant to the Management Agreement (whether in respect of the Manager’s remuneration or disbursements or otherwise) exceeds [US$100,000] or the equivalent in other currencies; and
4.7 the Manager will provide the Bank with such information concerning the Ship as the Bank may from time to time reasonably require.
Appears in 1 contract
Sources: Loan Agreement (Safe Bulkers, Inc.)
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with the CBC and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) it shall only resign from its position as director of the CBC as soon as a suitable person, trust or administration office, reasonably acceptable to the Security Trustee, after consultation with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) Secured Parties, other than the Covered Bondholders, has been contracted to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant act as successor director of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred CBC subject to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedRating Agency Confirmation;
(b) to utilise all Financial Assistance consistently the CBC shall undertake no other business except as provided for in the Transaction Documents until the CBC no longer has any actual or contingent liabilities under any of the Transaction Documents and any Covered Bonds;
(c) it shall manage the affairs of the CBC in accordance with the Decision as proper and prudent Dutch business practice and in force at the relevant time accordance with its articles of association and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) it shall continue to ensure that at all times all Financial Assistance made available to be the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation sole director of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC;
(e) it shall as director of the CBC not (i) agree to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State any alteration of any feesagreement including, costs and expensesbut not limited to, including in particular Issuance Coststhe Transaction Documents, breakage to which the CBC is a party or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operationsii) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (any agreement in each case without the prior written consent of EFSFthe Security Trustee and without notification to the Rating Agencies and in accordance with any other requirements in any of the Transaction Documents;
(f) it and the CBC shall refrain from any transactions or arrangements for the acquisition, purchase or exchange action detrimental to any of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated its obligations under the PSI LM Facility. Where Transaction Documents;
(g) it shall exercise all its rights and/or powers by virtue of being director of the CBC in compliance with the Transaction Documents;
(h) it shall procure that the CBC shall at all times fulfil and comply with its obligations under each Transaction Document to which it is or will become a party, provided that to the extent that such obligations are contingent or dependent for their performance on the due performance by any transaction or proposed transaction would require other party of its obligations and undertakings under any Transaction Document such other party duly performs such obligations and undertakings thereunder;
(i) it shall as director of the CBC not engage external advisers without the prior written consent of EFSF pursuant the Security Trustee, which consent shall be presumed to this Clause, have been given if the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten Security Trustee will not have replied within five (105) Business Days prior to from the date upon which of the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; andwritten request from the CBC;
(hj) more generallyit shall not, to indemnify and hold harmless EFSF on first demand from and against any additional interestas director of the CBC, costs, claims, losses, damages, liabilities and expenses novate or amend this Agreement without the prior written consent of the Security Trustee;
(including legal fees, costs k) it shall as director of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
the CBC not take action (i) any information which is received from to dissolve the Beneficiary Member State in connection with this Agreement CBC, or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of to enter into a legal merger or legal demerger involving the representationsCBC, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any actionto have the CBC converted into a foreign entity, claimor (iv) to have the CBC request the court to grant a suspension of payments, demandor (v) to have the CBC declared bankrupt, proceeding, investigation, arbitration or judgment brought against EFSF in connection without the prior written consent of the Security Trustee;
(l) the CBC shall continue to comply with EFSF entering into the applicable provisions of the CRR and the performance Wft and with the provisions of this Agreementall applicable decrees, any Pre-Funding Agreement rules, regulations and statements of policy of the relevant authority or any Facility Specific Terms authorities in the Netherlands, issued pursuant to or in connection with the transactions contemplated therein CRR and the Wft;
(m) it shall procure that the Security Trustee and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of any steps being taken by any party for the winding up, liquidation or bankruptcy of the CBC or of any steps or proceedings being taken against the CBC for the enforcement of any debt or obligation and in particular that the Security Trustee is notified in writing within two (2) calendar days of any summons to attend court hearings on a petition for bankruptcy being served on or received by the CBC;
(n) the CBC shall not engage employees and shall not enter into any agreement with respect to the rendering of services to the CBC, except as provided for in the MoU.Transaction Documents;
(o) it shall procure that the Security Trustee and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of the occurrence of any of the events set forth in Clause 8.2 hereof;
(p) it shall continue to comply with the requirements of Netherlands law regarding services as provided for in this Agreement, including the Dutch Act on the Supervision of Trust Offices as amended from time to time;
(q) the CBC shall hold itself as a separate entity and conduct its business in its own name;
(r) the CBC shall use separate stationary, invoices and checks; and
(s) it shall procure that Stichting Holding will after the adoption and approval of the CBC's annual accounts, each calendar year resolve that the CBC shall pay out any profit amount resulting from item
Appears in 1 contract
Sources: Management CBC Agreement
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 9, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with Stichting Holding and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances it shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues continue to be generated by the operation of, or loss or damage to, such properties as the principal source sole director of repayment for the moneys advancedStichting Holding;
(b) subject to utilise all Financial Assistance consistently Clause 9.1 and 9.2, it shall only resign from its position as director of Stichting Holding once a suitable person, trust or administration office, reasonably acceptable to the Security Trustee, after having consulted the Secured Creditors, other than the Covered Bondholders and after having notified the Rating Agency, has been contracted to act as successor director of Stichting Holding;
(c) it shall manage the affairs of Stichting Holding in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice and with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) to ensure that at all times all Financial Assistance made available it and Stichting Holding will refrain from any action detrimental to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans rights and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC under the Transaction Documents and shall undertake no other business, except as provided for in the Transaction Documents;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of it will not enter into any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including agreement in relation to the amounts raised CBC other than the Transaction Documents to fund the Liquidity Bufferwhich it is a party, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSFthe Security Trustee and provided that the Rating Agency has been notified;
(f) any transactions or arrangements for it shall exercise all its rights and powers as director of Stichting Holding in compliance with the acquisitionTransaction Documents;
(g) it shall not, purchase or exchange as director of New Greek BondsStichting Holding, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require engage external advisers without the prior written consent of EFSF pursuant the Security Trustee, which consent shall be presumed to this Clause, have been given if the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten Security Trustee will not have replied within five (105) Business Days prior to from the date upon which of the Beneficiary Member State enters intowritten request from Stichting Holding;
(h) it shall not, as director of Stichting Holding, pass any resolution for the amendment of the articles of association of the CBC or the appointment of a director of the CBC, without the prior written consent of the Security Trustee;
(i) it undertakes to procure that Stichting Holding shall be and continues to be the sole shareholder of the CBC;
(j) it shall not, as director of Stichting Holding, pass any resolution (i) to issue any additional shares in the capital of the CBC or (ii) to transfer shares in the capital of the CBC or (iii) to grant rights to third parties to acquire shares in the capital of the CBC or (iv) to pledge, dispose of or encumber in any other way the shares in the capital of the CBC;
(k) it shall, as director of Stichting Holding, exercise its voting and other shareholder rights and powers (if any) in accordance with the CBC's obligations under the Transaction Documents and/or as otherwise instructed by the Security Trustee;
(l) it shall not, as director of Stichting Holding, novate or amend this Agreement without the prior written consent of the Security Trustee;
(m) it shall not, as director of Stichting Holding, take action (i) to dissolve the CBC, (ii) to enter into a legal merger or legal demerger involving the CBC, (iii) to have the CBC converted into a foreign entity, (iv) to have the CBC request the court to grant a suspension of payments, (v) to have the CBC declared bankrupt, or proposes (vi) to have the CBC subjected to statutory proceedings for the restructuring of its debts;
(n) it shall not, as director of Stichting Holding, take action (i) to dissolve Stichting Holding, (ii) to enter intointo a legal merger or legal demerger involving Stichting Holding, (iii) to have Stichting Holding request the court to grant a suspension of payments, (iv) to have Stichting Holding converted into a foreign entity,(v) to declare its bankruptcy, or (vi) to have it subjected to statutory proceedings for the restructuring of its debts;
(o) it shall procure that the Issuer, the Security Trustee and the Rating Agency are notified in writing forthwith upon the Director becoming aware of (i) any legally binding offersteps being taken by any party for the winding-up, agreement liquidation or arrangement bankruptcy or the becoming subject to any analogous insolvency proceedings under any applicable law of Stichting Holding or (ii) of any steps or proceedings being taken against Stichting Holding for the enforcement of any debt or obligation or (iii) any of the events listed in relation Clause 9.2 hereof has taken place and in particular that the Issuer and the Security Trustee are notified in writing within two (2) calendar days of any summons to such transactionattend court hearings on a petition for bankruptcy being served on or received by Stichting Holding;
(p) it shall comply with the requirements of Dutch law regarding services as provided for in this Agreement, including the Dutch Act on the Supervision of Trust Offices, as amended from time to time; and
(hq) more generallyit shall as director of Stichting Holding procure that Stichting Holding will after the adoption and approval of the CBC's annual accounts, each calendar year resolve that the CBC shall pay out any profit amount resulting from item (ix) of the Interest Available Amount, by way of dividend to Stichting Holding and it shall as director of Stichting Holding procure that Stichting Holding shall, within a period of fifteen (15) Business Days after the receipt of such amount, donate such amount, after deduction of any amounts owed to the tax authorities, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.a charitable purpose.
Appears in 1 contract
Sources: Management Agreement
Undertakings. The Beneficiary Member State undertakes, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paid:
(a) The Pledgor shall procure that the Company shall forthwith upon the execution hereof provide the Pledgee with a certificate in the exception form of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:Schedule 2.
(ib) not to secure by mortgage, pledge The Pledgor shall procure that no executory seizure (saisie execution/uitvoerend beslag) is made on the Shares or any other encumbrance upon its own assets or revenues Pledged Assets, and that any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; andconservatory seizure (saisie conservatoire/bewarend beslag) thereon is lifted within 60 days of it first being made.
(iic) not The Pledgor shall co-operate with the Pledgee and sign or cause to grant be signed all such further documents and take all such further action as the Pledgee may from time to any other creditor or holder time reasonably request to perfect and protect the pledge of its sovereign debt any priority over its obligations the Pledged Assets under Belgian law and to carry out the provisions and purposes of this Agreement. The grant Pledgee shall not be obligated to request any action under this paragraph (c) except upon written instructions from the Requisite Noteholders.
(d) The Pledgor shall not (i) dispose of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal Shares or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and Pledged Assets except in accordance with the MoU as provisions of this Agreement or the same has been modified or supplemented as at the date Terms and Conditions of Notes, (ii) create any other Lien in respect of the Request for Funds applicable to such Financial Assistance;
Pledged Assets (cirrespective of whether ranking behind the pledge created hereby), nor (iii) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including permit the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to existence or the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent subsistence of any security provided in accordance with Clause 5(2)(a)(i))such Lien, direct, unconditional, unsubordinated and general obligation except Permitted Liens imposed by mandatory operation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;law.
(e) The Pledgor shall not take any steps, including without limitation to comply the exercise of any right it has under any agreement pertaining to or in all respects relation with applicable laws the Pledged Assets, which might may jeopardise or adversely affect its ability to perform the security interest constituted in this Agreement (including Agreement, except as permitted in the Facility Specific Terms) Terms and each Pre- Funding Agreement;Conditions of Notes.
(f) The Pledgor shall use its best efforts to pay the amount allocated by EFSF to the Beneficiary Member State ensure that (i) an extraordinary general meeting of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF partners of the details of the proposed transaction Company will be held in order to request amend article 9 of the articles of association of the Company in such consent no fewer than ten a way that the right of first refusal (10voorkeurrecht/droit de preference) Business Days prior and the required approval by the board of directors (goedkeuringsclausule/clause d'agrement) as presently set forth in said article 9 of the articles of association do not apply to an enforcement of the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with pledge under this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; and that (ii) any breach this extraordinary general meeting of partners shall be held as soon as practically possible after Solutia Inc has given its consent to the above mentioned amendment or after the date at which this consent is no longer required in view of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.above mentioned amendment.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakes Without prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed the Director undertakes with Stichting Holding and all interest and additional amounts, if any, due under the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with the exception of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
(i) not to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances it shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues continue to be generated by the operation of, or loss or damage to, such properties as the principal source sole director of repayment for the moneys advancedStichting Holding;
(b) it shall only resign from its position as director of Stichting Holding once a suitable person, trust or administration office, reasonably acceptable to utilise all Financial Assistance consistently the Security Trustee, has been contracted to act as director of Stichting Holding, subject to Rating Agency Confirmation;
(c) it shall manage the affairs of Stichting Holding in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice and with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreementaccount of third parties;
(d) to ensure that at all times all Financial Assistance made available it and Stichting Holding will refrain from any action detrimental to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessCBC under the Transaction Documents and shall undertake no other business, except as provided for in the Transaction Documents;
(e) to comply it shall exercise all its rights and powers as director of Stichting Holding in all respects compliance with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding AgreementTransaction Documents;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State it shall not as director of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (Stichting Holding engage external advisers without the prior written consent of EFSFthe Security Trustee;
(g) it shall not as director of Stichting Holding pass any transactions or arrangements resolution for the acquisition, purchase amendment of the articles of association of the CBC or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes appointment of a short term investment as contemplated under director of the PSI LM Facility. Where any transaction or proposed transaction would require CBC, without the prior written consent of EFSF pursuant the Security Trustee;
(h) it undertakes to procure that Stichting Holding shall be and continues to be the sole shareholder of the CBC;
(i) it shall not as director of Stichting Holding pass any resolution (i) to issue any additional shares in the capital of the CBC or (ii) to transfer shares in the capital of the CBC or (iii) to grant rights to third parties to acquire shares in the capital of the CBC or (iv) to pledge, dispose of or encumber in any other way the shares in the capital of the CBC;
(j) it shall as director of Stichting Holding exercise its voting and other shareholder rights and powers (if any) in accordance with the CBC's obligations under the Transaction Documents and/or as otherwise instructed by the Security Trustee;
(k) it shall not novate or amend this ClauseAgreement without the prior written consent of the Security Trustee;
(l) it shall take no action (i) to dissolve the CBC, (ii) to enter into a legal merger or legal demerger involving the CBC, (iii) to have the CBC converted into a foreign entity, (iv) to have the CBC request the court to grant a suspension of payments or (v) to have the CBC declared bankrupt;
(m) it shall take no action (i) to dissolve Stichting Holding, (ii) to enter into a legal merger or legal demerger involving Stichting Holding or (iii) to have Stichting Holding request the court to grant a suspension of payments or (iv) to have Stichting Holding converted into a foreign entity or (v) to declare its bankruptcy;
(n) it shall procure that the Issuer, the Beneficiary Member State must notify EFSF Security Trustee and the Rating Agencies are notified in writing forthwith upon the Director becoming aware of (i) any steps being taken by any party for the winding-up, liquidation or bankruptcy of Stichting Holding or (ii) of any steps or proceedings being taken against Stichting Holding for the enforcement of any debt or obligation or (iii) any of the details events listed in Clause 8.2 hereof has taken place and in particular that the Issuer and the Security Trustee are notified in writing within two (2) calendar days of any summons to attend court hearings on a petition for bankruptcy being served on or received by Stichting Holding;
(o) it shall comply with the proposed transaction requirements of Dutch law regarding services as provided for in order this Agreement, including the Dutch Act on the Supervision of Trust Offices, as amended from time to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactiontime; and
(hp) more generallyit shall as director of Stichting Holding procure that Stichting Holding will after the adoption and approval of the CBC's annual accounts, each calendar year resolve that the CBC shall pay out any profit amount resulting from item (ix) of the Available Revenue Funds, by way of dividend to Stichting Holding and it shall as director of Stichting Holding procure that Stichting Holding shall, within a period of fifteen (15) Business Days after the receipt of such amount, donate such amount, after deduction of any amounts owed to the tax authorities, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.a charitable purpose.
Appears in 1 contract
Sources: Management Holding Agreement
Undertakings. The Beneficiary Member State undertakesWithout prejudice to the provisions of Clause 8, in relation to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under the Director undertakes with the Security Trustee with effect from the date of this Agreement (including the Facility Specific Terms) have been fully paidand as long as it serves as director that:
(a) with it is and shall continue to be the exception sole director of those encumbrances enumerated in Sub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:
the Security Trustee, save (i) not pursuant to secure a Programme Resolution by mortgage, pledge the holders of the Covered Bonds in accordance with Clause 25 of the Trust Deed or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course provisions of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advancedClause 8 hereof;
(b) subject to utilise Clause 8, it shall only resign from its position as director of the Security Trustee as soon as a suitable person, trust or administration office, reasonably acceptable to the CBC and the Issuer, after having consulted the Secured Creditors, other than the Covered Bondholders, and subject to Rating Agency Confirmation, has been contracted to act as director of the Security Trustee, subject to an Extraordinary Resolution by the Covered Bondholders in accordance with Clause 25 of the Trust Deed;
(c) the Security Trustee shall undertake no other business, except as provided for in the Transaction Documents, until the Issuer and the CBC no longer have any actual or contingent liabilities under any of the Transaction Documents, including, but not limited to, all Financial Assistance consistently liabilities vis-à-vis any and all of the Secured Creditors;
(d) it shall manage the affairs of the Security Trustee in accordance with the Decision as in force at the relevant time proper and prudent Dutch business practice and in accordance with the MoU as requirements of Dutch law and Dutch accounting practice and with the same has been modified care that it exercises or supplemented as at would exercise in connection with the date administration of similar matters held for its own account or for the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent account of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtednessthird parties;
(e) it shall not as director of the Security Trustee (i) agree to comply any alteration of any agreement including, but not limited to, the Transaction Documents, to which the Security Trustee is a party or (ii) enter into any agreement, without having consulted the Secured Creditors, other than the Covered Bondholders, prior thereto and subject to Rating Agency Confirmation, except as provided for in all respects with applicable laws which might affect its ability to perform any of the Transaction Documents or (iii) appoint other directors of the Security Trustee save as provided in Clause 25 of the Trust Deed or Clause 8 of this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay it and the amount allocated by EFSF Security Trustee shall refrain from any action detrimental to the Beneficiary Member State of any fees, costs Security Trustee's rights and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to obligations under the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes placeTransaction Documents;
(g) not it shall exercise all its rights and powers as director of the Security Trustee in compliance with the Transaction Documents;
(h) it shall procure that the Security Trustee will at all times fulfil and comply with its obligations under each Transaction Document to which it is or will become a party, provided that to the extent that such obligations are contingent or dependent for their performance on the due performance by any other party of its obligations and undertakings under any Transaction Document such other party duly performs such obligations and undertakings thereunder;
(i) it shall take no action (i) to dissolve the Security Trustee, or (ii) to enter into a legal merger or arrange a legal demerger involving the Security Trustee, or (without iii) to have the prior written consent Security Trustee converted into a foreign entity, or (iv) to have the Security Trustee request the court to grant a suspension of EFSFpayments, or (v) to have the Security Trustee declared bankrupt;
(j) it shall ensure that the Issuer, the CBC, the Secured Creditors, other than the Covered Bondholders, and the Rating Agency are notified in writing forthwith upon the Director becoming aware of any transactions steps being taken by any party in connection with the winding up, liquidation or arrangements bankruptcy of the Security Trustee or of any steps or proceedings being taken against the Security Trustee for the acquisition, purchase enforcement of any debt or exchange of New Greek Bonds, directly or indirectly via obligation and in particular that the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this ClauseIssuer, the Beneficiary Member State must notify EFSF CBC, the Secured Creditors, other than the Covered Bondholders, and the Rating Agency are notified in writing within two (2) calendar days of any summons to attend court hearings on a petition for bankruptcy being served on or received by the Security Trustee;
(k) it shall procure that the Security Trustee, the Administrator and the Rating Agency are notified in writing forthwith upon the Director becoming aware of the details occurrence of any of the proposed transaction events set forth in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transactionClause 8.2 hereof; and
(hl) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or it shall comply with the MoU being incorrect, inaccurate or misleading; (ii) any breach requirements of the representations, warranties and/or undertakings Dutch law regarding services as provided for in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and including the performance Dutch Act on the Supervision of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU.Trust Offices as amended from time to time.
Appears in 1 contract
Undertakings. The Beneficiary Member State undertakes, in relation Seller undertakes to General Government Debt, until such time as all Financial Assistance has been fully reimbursed and all interest and additional amounts, if any, due under this Agreement (including the Facility Specific Terms) have been fully paidBank that the Seller will:
(a) with the exception duly perform its obligations under each Contract of those encumbrances enumerated Sale which relate to, or may in Sub-paragraphs any way affect, any Purchased Debt;
(a)(ii)(1b) to (a)(ii)(8) belownot:
(i) not amend or permit any amendment or change to secure by mortgage, pledge the terms of a Contract of Sale (or the relevant Invoice or any document evidencing any Related Rights) which may affect any of the Bank's rights in connection with any Purchased Debt; or
(ii) reduce or permit the reduction of the principal amount of any Purchased Debt, or enter into any discussions or communications to do or which contemplate any of the foregoing, unless approved by the Bank in writing;
(c) upon becoming aware, immediately disclose to the Bank any Adverse Information;
(d) notify the Bank forthwith of any litigation or arbitration which is taking place, pending or threatened against the Seller in connection with a Contract of Sale to which any Purchased Debt relates;
(e) use the Seller's best endeavours to procure the Agreed Buyer's due and punctual payment to the Bank (or the Assignee) of all Purchased Debts and to protect the interests of the Bank as if the Seller had not sold the Purchased Debt;
(f) not permit any Security to be created or subsist over, nor sell, assign, transfer, discount or otherwise dispose of, any of the Seller's rights, title or interest in the Returned Goods, the Debt and/or to any Contract of Sale except pursuant to the Agreement or in the Bank's favour;
(g) conduct appropriate due diligence on the Ariba Network to ensure that it meets the Seller’s requirements and will notify the Bank immediately if it discontinues receiving services from the Provider and about other encumbrance upon its own assets relevant changes. The Seller is aware and accepts the risks associated with using the Ariba Network, including the risk of delay, loss, interception, corruption, misuse or revenues disclosure to an incorrect third party of Transmissions;
(h) accept full responsibility for any present information, document or future Relevant Indebtedness data the Seller transmits on any Channel;
(i) as of the applicable Purchase Date for each Purchased Debt, reflect in the Seller's internal records that that Purchased Debt has been transferred, assigned, conveyed and sold to the Bank in accordance with the Agreement;
(j) comply with all requirements set out in Clause 13;
(k) comply with (i) all applicable laws relating to the Seller's dealings with the Agreed Buyer and the Purchased Debts and (ii) the Regulatory Compliance Statement;
(l) retain all documents, instruments and other records relating to the Purchased Debts;
(m) give the Bank accurate and up to date information in relation to the Agreement and any guarantee other information the Bank reasonably requests (including without limitation any personal information that the Bank is required to provide under any agreement between the Bank and any Authority) and immediately notify the Bank of any changes;
(n) keep all limits confidential;
(o) give the Bank any information or indemnity given document in respect thereof, unless relation to the Financial Assistance shall, at Agreement or a Debt the same time, share pari passu Bank requests within a reasonable time including:
(i) the original or a certified copy of the Contract of Sale and pro rata in such securityall relevant Invoices; and
(ii) not purchase orders, delivery orders and any other evidence of shipment;
(p) provide the Bank with copy of any other authorisation or other document, opinion or assurance which the Bank has Notified the Seller is necessary or desirable in connection with the entry into and performance of, and the transactions contemplated by the Agreement or for the validity and enforceability of the Agreement, in form and substance satisfactory to grant the Bank;
(q) take independent legal, accounting and other advice in relation to any other creditor Service, Transaction or holder of its sovereign debt the Agreement with the Bank (including, without limitation, in connection with any priority over its obligations under accounting treatment to be applied to the Transactions) and agrees that the Bank does not owe any advisory, fiduciary or similar duties in this Agreement. The grant of regard;
(r) deliver to the following encumbrances shall not constitute a breach of this ClauseBank:
(1i) encumbrances upon any property incurred to secure within 60 days from the purchase price end of such property and any renewal or extension each calendar year, status reports on each of any such encumbrance which is limited the Seller's outstanding projects relevant to the original property covered thereby and which secures any renewal Debts the Bank has purchased or extension of may purchase under the original secured financingAgreement; and
(2ii) encumbrances on commercial goods arising in as soon as available, the course of ordinary commercial transactions Seller's audited consolidated financial statements;
(and expiring s) take such actions, at the latest within one year thereafterSeller's own expense, to prevent and minimise any Losses (including any Losses on the part of an Assignee) to finance caused by any actual or prospective Buyer payment default and protect the import or export of such goods into or from the country rights, powers and interests of the Beneficiary Member StateBank and an Assignee under the Agreement including, if requested by the Bank, co-operating with the Bank to stop Goods in transit;
(t) procure that each Guarantor acknowledges and signs the Agreement (including any amendment made to the Agreement from time to time);
(u) accept full responsibility for any document, information or data the Seller imports on the Bank’s website;
(v) acknowledge that the Bank is not responsible for and has no duty to vet, filter or otherwise edit any document, information or data imported by the Seller on the Bank’s website;
(w) comply with the provisions of Schedule 4 if the Bank sells, assigns or transfers a Debt to an Assignee; and
(3x) encumbrances securing ensure, where a Purchased Debt of an Agreed Buyer is (or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are becomes) the subject of such project financingInsurance, that the debts (whether Purchased Debt or otherwise, or which are revenues or claims which arise deriving from the project; and
(4Contract of Sale or otherwise) of that Agreed Buyer are not the subject of any other encumbrances in existence on insurance policy where the date of the signing of this Agreement, provided Seller is an insured party to that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement other insurance policy (including for the avoidance of doubt the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further whether or not that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided policy was procured by the Beneficiary Member State; and
(6) any encumbrance granted or consented to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistance;
(c) to obtain and maintain in full force and effect all authorisations necessary for it and HFSF to comply with its obligations under this Agreement (including the Facility Specific Terms) and each Pre-Funding Agreement;
(d) to ensure that at all times all Financial Assistance made available to the Beneficiary Member State under the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(iSeller)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant Indebtedness;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including the Facility Specific Terms) and each Pre- Funding Agreement;
(f) to pay the amount allocated by EFSF to the Beneficiary Member State of any fees, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred in respect of any Funding Instruments or hedging contract which EFSF may have undertaken (including in relation to the amounts raised to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection with this Agreement or any Pre-Funding Agreement, the transactions contemplated herein or with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU..
Appears in 1 contract
Sources: Receivables Purchase Terms
Undertakings. The Beneficiary Member State undertakes, 2.1 In consideration of the Company making Confidential Information available to the Counterparty and agreeing to enter into discussions with the Counterparty in relation to General Government Debtthe Proposed Transaction, until such time the Counterparty undertakes to the Company and each Group Company that, save as all Financial Assistance has been fully reimbursed permitted by this Agreement, it will and all interest and additional amounts, if any, due under this Agreement will procure that each of its Associates (including the Facility Specific Termsemployees, agents and representatives of the Counterparty and its Associates to whom Confidential Information is disclosed) have been fully paidwill:
(a) with keep the exception Confidential Information secret and confidential and not disclose any of those encumbrances enumerated it to any person other than individuals listed in Subsub-paragraphs (a)(ii)(1) to (a)(ii)(8) below:clause 3.2;
(ib) not take all reasonable precautions to secure by mortgage, pledge or any other encumbrance upon its own assets or revenues any present or future Relevant Indebtedness and any guarantee or indemnity given in respect thereof, unless maintain the Financial Assistance shall, at the same time, share pari passu and pro rata in such security; and
(ii) not to grant to any other creditor or holder confidentiality of its sovereign debt any priority over its obligations under this Agreement. The grant of the following encumbrances shall not constitute a breach of this Clause:
(1) encumbrances upon any property incurred to secure the purchase price of such property and any renewal or extension of any such encumbrance which is limited to the original property covered thereby and which secures any renewal or extension of the original secured financing; and
(2) encumbrances on commercial goods arising in the course of ordinary commercial transactions (and expiring at the latest within one year thereafter) to finance the import or export of such goods into or from the country of the Beneficiary Member State; and
(3) encumbrances securing or providing for the payment of Relevant Indebtedness incurred exclusively in order to provide financing for a specific investment project, provided that the properties to which any such encumbrances apply are properties which are the subject of such project financing, or which are revenues or claims which arise from the project; and
(4) any other encumbrances in existence on the date of the signing of this Agreement, provided that such encumbrances remain confined to the properties presently affected thereby and properties which become affected by such encumbrances under contracts in effect on the date of the signing of this Agreement all Confidential Information (including for the avoidance of doubt using no lesser security measures and degree of care than the crystallisation of any floating charge which had been entered into at the date of this Agreement) and provided further that such encumbrances secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations; and
(5) all other statutory encumbrances and privileges which operate solely by virtue of law and which cannot be reasonably avoided by the Beneficiary Member State; and
(6) any encumbrance granted or consented Counterparty applies to under a securitisation transaction which has been consented to in advance by EFSF provided that such transaction is consistent with the policy conditions of the MoU and is accounted for in national accounts in accordance with ESA 95 principles and Eurostat guidance on securitisation operations conducted by Member States' governments; and
(7) any encumbrance securing the Beneficiary Member State's obligations to any central securities depository, such as Euroclear or Clearstream, given in the normal course of the Beneficiary Member State's business; and
(8) any encumbrance securing an indebtedness of less than EUR 3 million provided that the maximum aggregate of all indebtedness secured by such encumbrances shall not exceed EUR 50 million. As used in this Clause, "financing for a specific investment project" means any financing of the acquisition, construction or development of any properties in connection with a project if the providing entity for such financing expressly agrees to look to the properties financed and the revenues to be generated by the operation of, or loss or damage to, such properties as the principal source of repayment for the moneys advanced;
(b) to utilise all Financial Assistance consistently with the Decision as in force at the relevant time and in accordance with the MoU as the same has been modified or supplemented as at the date of the Request for Funds applicable to such Financial Assistanceits own Confidential Information);
(c) not directly or indirectly disclose (or allow to obtain and maintain be disclosed), in full force and effect all authorisations necessary for it and HFSF whole or in part, or make Copies of, or sell, trade or publish any Confidential Information to comply with its obligations under any person unless permitted by this Agreement (including or as otherwise reasonably required for the Facility Specific Terms) Permitted Purpose and each Preas permitted under sub-Funding Agreementclause 4.1;
(d) to ensure that at all times all Financial Assistance made available to not use, reproduce, transform or store the Beneficiary Member State under Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means outside its usual place of business unless permitted by this Agreement or as otherwise reasonably required for the Facilities shall constitute an unsecured (save to the extent of any security provided in accordance with Clause 5(2)(a)(i)), direct, unconditional, unsubordinated and general obligation of the Beneficiary Member State and will rank at least pari passu with all other present and future unsecured and unsubordinated loans and obligations of the Beneficiary Member State arising from its present or future Relevant IndebtednessPermitted Purpose;
(e) to comply in all respects with applicable laws which might affect its ability to perform this Agreement (including not use or exploit any Confidential Information for any purpose other than for the Facility Specific Terms) and each Pre- Funding Agreement;Permitted Purpose; and
(f) not make, or procure another person to pay the amount allocated by EFSF to the Beneficiary Member State of any feesmake, costs and expenses, including in particular Issuance Costs, breakage or termination costs, and Cost of Carry incurred an announcement in respect of any Funding Instruments Confidential Information unless permitted by this Agreement.
2.2 The Counterparty undertakes to inform the Company promptly upon becoming aware, or hedging contract which EFSF may have undertaken (including in relation suspecting, that Confidential Information has been disclosed to an unauthorised person.
2.3 The Counterparty further undertakes to the amounts raised Company and each Group Company that it shall inform each person to fund the Liquidity Buffer, Financings and/or Pre-Funding Operations) regardless of whether the provision of any Financial Assistance or any utilisation under a Facility takes place;
(g) not whom Confidential Information is to enter into or arrange (without the prior written consent of EFSF) any transactions or arrangements for the acquisition, purchase or exchange of New Greek Bonds, directly or indirectly via the Bank of Greece, any affiliate or agent or any special purpose entity whether at a price equal to, above or below par value, unless such transaction or arrangement for the acquisition, purchase or exchange of New Greek Bonds is for the purposes of a short term investment as contemplated under the PSI LM Facility. Where any transaction or proposed transaction would require the prior written consent of EFSF be disclosed pursuant to this Clause, the Beneficiary Member State must notify EFSF of the details of the proposed transaction in order to request Agreement that it is confidential and procure that such consent no fewer than ten (10) Business Days prior to the date upon which the Beneficiary Member State enters into, or proposes to enter into, any legally binding offer, agreement or arrangement in relation to such transaction; and
(h) more generally, to indemnify and hold harmless EFSF on first demand from and against any additional interest, costs, claims, losses, damages, liabilities and expenses (including legal fees, costs of investigation and any value added tax or equivalent thereof) incurred or suffered by EFSF and which result from
(i) any information which is received from the Beneficiary Member State in connection persons comply with this Agreement or any Pre-Funding Agreementas if they were a party to it. For the avoidance of doubt, at all times, the transactions contemplated herein or Counterparty will be responsible for such persons’ compliance with the MoU being incorrect, inaccurate or misleading; (ii) any breach of the representations, warranties and/or undertakings obligations set out in this Agreement, any Pre-Funding Agreement or any Facility Specific Terms; and/or (iii) any action, claim, demand, proceeding, investigation, arbitration or judgment brought against EFSF in connection with EFSF entering into and the performance of this Agreement, any Pre-Funding Agreement or any Facility Specific Terms or in connection with the transactions contemplated therein or in the MoU..
Appears in 1 contract
Sources: Confidentiality Agreement