Negative undertakings. The Borrower will not: (a) except in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law); (b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or (c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if: (i) an Event of Default or Potential Event of Default has occurred; or (ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount; (d) provide any form of credit or financial assistance to: (i) an Affiliate; (ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or (iii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees). (e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; or
Appears in 2 contracts
Sources: Loan Agreement (Arlington Tankers Ltd.), Loan Agreement (General Maritime Corp / MI)
Negative undertakings. The No Borrower will notwill:
(a) except in connection with the Amalgamation (including carry on any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (business other than as may be required the ownership, chartering and operation of the Ship owned by applicable law);it; or
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital ifProvided that a Borrower may pay dividends if at the relevant time:
(i) an no Event of Default or Potential Event of Default has occurredoccurred or will occur as a result of such payment; orand
(ii) that Borrower maintains (prior to, and after, such payment) a credit balance in its Earnings Account which, when aggregated with the aggregate value of the Ships then subject to a Mortgage (as determined Minimum Liquidity Amount maintained by a Recent Valuation ) that Borrower in accordance with Clause 18.3, is not less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount$1,000,000;
(dc) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iiiii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to length;
(xd) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases open or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit maintain any account with any bank or financial assistance to institution except (i) the Earnings Account and the Drydocking Reserve Account with the Account Bank, (ii) accounts with the Agent and the Security Trustee for the purposes of the Finance Documents and (iii) any Guarantor (including amounts to pay ship management fees).account already disclosed to, and accepted by, the Lenders;
(e) issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital;
(f) acquire any shares or other securities other than the AmalgamationUS or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative;
(g) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; or
(h) incur any Financial Indebtedness, other than in the ordinary course of owning and operating the Ship or as otherwise contemplated pursuant to this Agreement, the other Finance Documents and the Junior Finance Documents.
Appears in 2 contracts
Sources: Loan Agreement (Seanergy Maritime Holdings Corp.), Loan Agreement (Seanergy Maritime Holdings Corp.)
Negative undertakings. The Borrower will not:
(a) except carry on any type of business other than the ownership, chartering and operation of the Ship in connection accordance with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law)documents;
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution (other than payment of a dividend pursuant to Clause 12.4) or effect any form of redemption, purchase purchase, reduction or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurredissue, allot or grant any person a right to any shares in its capital; or
(iic) without the aggregate value prior written consent of the Ships then subject to a Mortgage Agent (as determined by a Recent Valuation ) is less than 140 per cent. acting on the instructions of the aggregate of the Loan Majority Lenders), which consent and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall instructions will not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) unreasonably be withheld, incur any debt or provide any form of credit or financial assistance to:
(iunless fully subordinated to the Loan and on terms otherwise acceptable to the Lenders) an Affiliate;
issue any guarantee to any person, (ii) a person who is directly or indirectly interested other than otherwise permitted in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connectedthis Agreement), or enter into any transaction with or involving such a person person, unless in the ordinary course of its normal shipping business; or
(d) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), open or company (including, without limitation, maintain any account with any bank or financial institution except accounts with the purchase from, sale to or exchange of property with, Account Bank or the rendering Swap Bank or for the purposes of any service by or for, such person or company) on terms which are, in any respect, less favourable the Finance Documents and accounts notified to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower Agent prior to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return date of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).this Agreement; or
(e) acquire any shares or other securities other than the AmalgamationUS or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative (other than a Designated Transaction); or
(f) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation, or change its name; or
(g) purchase any further assets (other than the Ship), either directly or indirectly (through subsidiaries); or
(h) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), which consent and instructions will not be unreasonably be withheld, incur any other Financial Indebtedness. Any shareholder loans, inter company loans, affiliate loans and third party loans to the Borrower shall be fully subordinated to the rights of the Creditor Parties under the Loan Agreement and the Finance Documents, on terms satisfactory to the Agent in its sole discretion.
Appears in 2 contracts
Sources: Loan Agreement (Euroseas Ltd.), Loan Agreement (Euroseas Ltd.)
Negative undertakings. The Borrower undertakes with each Bank that, from the Execution Date until the end of the Facility Period, it will not:, without the prior written consent of the Agent (acting on the instructions of the Lenders and such consent in respect of any change of name, flag, Classification, Classification Society or Manager not to be unreasonably withheld):
8.3.1 Negative pledge permit any Encumbrance (aother than a Permitted Encumbrance or as otherwise disclosed in writing by the Borrower to the Agent (and approved by the Agent) except in connection on or prior to the date of this Agreement) to subsist, arise or be created or extended over all or any part of its present or future undertakings, assets, rights or revenues to secure or prefer any present or future Indebtedness or other liability or obligation of any Security Party or any other person;
8.3.2 No merger or transfer merge or consolidate with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend other person or permit any amendment change to the legal or beneficial ownership of its articles shares from that existing at the Execution Date (and for the avoidance of incorporation, bye-laws, or doubt any other change in the ownership of its constitutional documents (other than as may be required by applicable lawshares of and in the Corporate Guarantor occurring in the normal course of business shall not constitute a breach of this Clause);
8.3.3 Disposals sell, transfer, assign, create security or option over, pledge, pool, abandon, lend or otherwise dispose of or cease to exercise direct control over its present or future undertakings, assets, rights or revenues (botherwise than by transfers, sales or disposals for full consideration in the ordinary course of trading) change the nature whether by one or a series of its transactions related or not;
8.3.4 Other business from or manager undertake any type of business other than the ownership and operation of ships the Vessel or (through its ownership without the prior written consent of the Guarantors); orAgent) employ anyone other than the Managers as commercial and technical manager of the Vessel or agree to any material amendment to or variation of the terms of the Management Agreements;
(c) declare 8.3.5 Acquisitions or pay investments acquire any dividend further assets other than the Vessel and rights arising under contracts entered into by or on behalf of the Borrower in the ordinary course of their businesses of acquiring, owning, operating and chartering the Vessel, or make any financial investments (other form of distribution or effect any form of redemption, purchase or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurred; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable derivative transactions pursuant to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management feesMaster Agreement).
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; or;
Appears in 2 contracts
Sources: Facility Agreement (EuroDry Ltd.), Facility Agreement (Euroseas Ltd.)
Negative undertakings. The Borrower will not:
(a) except in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law);
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors)business; or
(cb) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase purchase, return or return reduction of share capital ifunless:
(i) an Event of Default or Potential no Event of Default has occurred; oroccurred and is continuing at the relevant time (including, without limitation, any failure by the Borrower to satisfy the covenants contained in Clauses 12.5 and 15.1);
(ii) no Event of Default will result from the aggregate value payment of a dividend or the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. making of the aggregate any other form of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;distribution; and
(diii) it has first supplied to the Agent any Compliance Certificate required to be supplied at the relevant time to the Agent pursuant to Clause 11.22 evidencing compliance with the provisions of Clauses 12.5 and 15.1 for the period covered by the latest financial statements delivered to the Agent pursuant to Clause 11.6.
(c) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iiiii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply length;
(d) allow any Owner to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases open or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit maintain any account with any bank or financial assistance to any Guarantor (including amounts to pay ship management fees).institution except accounts with the Agent and the Security Trustee for the purposes of the Finance Documents;
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger, acquisition, divesture, split-up or any form of reconstruction or reorganisation unless:
(i) the surviving entity following such amalgamation, merger or de-merger, acquisition, divesture, split-up or any form of reconstruction or reorganisation is the Borrower; and
(ii) no Event of Default has occurred which is continuing nor any Event of Default (including, without limitation, any breach of Clause 12.5) will occur as a result of such amalgamation, merger or de-merger, acquisition, divesture, split-up or any form of reconstruction or reorganisation;
(f) change, or allow any Owner to change, its Financial Year; or
(g) change its auditors without notifying the Agent promptly after the occurrence of such change.
Appears in 2 contracts
Sources: Loan Agreement (Capital Product Partners L.P.), Loan Agreement (Capital Product Partners L.P.)
Negative undertakings. (a) The Borrower will not (and in the case of paragraph (i) shall procure that its subsidiaries will not:):
(ai) except engage in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (business other than as may be required by applicable law)the provision of drybulk shipping and maritime logistics services and businesses which are reasonably related or incidental thereto;
(bii) change enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation unless after giving effect thereto, (A) the nature of its business from the ownership and operation of ships (through its ownership surviving entity is a wholly-owned direct or indirect subsidiary of the GuarantorsShareholder Guarantor (or is the Shareholder Guarantor), (B) the surviving entity (if not the Borrower) has succeeded to all obligations of the Borrower under the Finance Documents and Master Agreements, and (C) no Event of Default or Potential Event of Default has occurred which is continuing; or
(ciii) declare or from and after the Drawdown Date pay any dividend or make any other form of distribution to its shareholders or effect any form of redemption, purchase or return of share capital if:
(i) if an Event of Default or Potential Event of Default has occurredoccurred and is continuing; orand
(b) The Borrower will procure that the Owners do not:
(i) engage in any business other than (A) the ownership, chartering, operation and disposition of the Ship or Ships (as the case may be), (B) execution, delivery and performance of the Finance Documents to which they are a party, and (C) activities necessary or incidental to the foregoing;
(ii) from and after the aggregate value Drawdown Date, pay any dividend or make any other form of the Ships then subject distribution to a Mortgage (as determined by a Recent Valuation ) their shareholders or effect any form of redemption, purchase or return of share capital if an Event of Default or Potential Event of Default has occurred and is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amountcontinuing;
(diii) from and after the Drawdown Date and except for dividends or distributions permitted by paragraph (ii) above and loans and advances made if no Event of Default or Potential Event of Default has occurred which is continuing, provide any form of credit or financial assistance to:
(i) an Affiliate;
(iiA) a person who is directly or indirectly interested in the Borrower’s its share or loan capital; or
(iiiB) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower it than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to length;
(xiv) loans and advances by the Borrower issue, allot or grant any person other than to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance a right to any Guarantor (including amounts to pay ship management fees).shares in its capital or repurchase or reduce its issued share capital;
(ev) acquire any shares or other securities other than the AmalgamationUS or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative; or
(vi) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; or.
Appears in 1 contract
Negative undertakings. The Borrower will not:
(a) except in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law);
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors)business; or
(cb) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital Provided that the Borrower may make a distribution if:
(i) an Event of Default or Potential the Borrower has first submitted to the Facility Agent a Compliance Certificate (with supporting evidence satisfactory to the Facility Agent) which confirms that (A) no Event of Default has occurredoccurred or is continuing and (B) the making of such distribution will not result in the Borrower being in breach of any of the financial covenants referred to in Clause 12.5 or in the occurrence of an Event of Default; orand
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) Facility Agent is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided satisfied that the restriction set out Security Cover Ratio referred to in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless Clause 15.1 is maintained at the aggregate value of time the Ships as aforesaid distribution is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;made; Index
(dc) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iiiii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing this shall not apply to (x) loans and advances by prevent or restrict the Borrower from on-lending the Loan to the Borrower Parent Owners;
(d) allow any Owner to the extent that the Borrower may make dividends, distributions, redemptions, purchases open or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit maintain any account with any bank or financial assistance institution except accounts with the Facility Agent or any other Creditor Party for the purposes of the Finance Documents Provided that until the completion of the syndication process (as referred to in Clause 12.8) an Owner may continue to maintain any Guarantor (including amounts to pay ship management fees).other accounts already opened with other banks for the purposes of previous financings;
(e) cause the common units of the Borrower to cease to be listed on the Nasdaq National Market in New York unless the common units of the Borrower are listed instead on any other than internationally recognised stock exchange acceptable to the AmalgamationLenders, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; orsuch acceptance not to be unreasonably withheld.
Appears in 1 contract
Negative undertakings. The Each Borrower will not:
(a) except in connection with carry on any type of business other than the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment ownership, chartering and operation of its articles of incorporation, bye-laws, or any other of Ship in accordance with its constitutional documents (other than as may be required by applicable law)documents;
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution (other than allocation of a distribution pursuant to Clause 12.4) or effect any form of redemption, purchase purchase, reduction or return of limited partnership interests and/or share capital if:
(i) an Event of Default or Potential Event of Default has occurredissue, allot or grant any person a right to any limited partnership interests and/or shares in its capital; or
(iic) without the aggregate value prior written consent of the Ships then subject to a Mortgage Agent (as determined by a Recent Valuation ) is less than 140 per cent. acting on the instructions of the aggregate of the Loan Majority Lenders), which consent and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall instructions will not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) unreasonably be withheld, incur any debt or provide any form of credit or financial assistance to:
(iunless fully subordinated to the Loan and on terms otherwise acceptable to the Lenders) an Affiliate;
issue any guarantee to any person, (ii) a person who is directly or indirectly interested other than otherwise permitted in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connectedthis Agreement), or enter into any transaction with or involving such a person person, unless in the ordinary course of its normal shipping business; or
(d) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), open or company (including, without limitation, maintain any account with any bank or financial institution except accounts with the purchase from, sale to Account Bank or exchange for the purposes of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable Finance Documents and accounts notified to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower Agent prior to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return date of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).this Agreement; or
(e) acquire any limited partnership interests and/or shares or other securities other than the AmalgamationUS or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative; or
(f) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation, or change its name; or
(g) purchase any further assets (other than the Ship owned by such Borrower), either directly or indirectly (through subsidiaries); or
(h) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), which consent and instructions will not be unreasonably be withheld, incur any other Financial Indebtedness. Any shareholder loans, inter company/partnership loans, partnership interest owners’ loans, affiliate loans and third party loans to the Borrowers shall be fully subordinated to the rights of the Creditor Parties under the Loan Agreement and the Finance Documents, on terms satisfactory to the Agent in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (EuroDry Ltd.)
Negative undertakings. The No Borrower will notwill:
(a) except in connection with carry on any business other than the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment ownership, chartering and operation of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law);Ship; or
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
(i) capital, if there has occurred an Event of Default which is continuing, or Potential an Event of Default has occurredwould thereby be caused to occur; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(dc) provide any form of credit or financial assistance to:to any person or company (without the prior written consent of the Agent, such consent not to be unreasonably withheld); or
(id) an Affiliate;open or maintain any account with any bank or financial institution except accounts with a bank or financial institution already opened or maintained or accounts approved by the Agent for the purposes of the Finance Documents; or
(iie) issue, allot or grant any person a person who is directly right to any shares in its capital or indirectly interested in the Borrower’s repurchase or reduce its issued share or loan capital; or
(iiif) acquire any company in shares or with which such a person is directly or indirectly interested or connected, other securities or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).derivative; or
(eg) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisationreorganisation which would (in the case of the Borrower) give rise to a Change of Control Event (without the prior written consent of the Agent, such consent not to be unreasonably withheld); or
(h) incur any Financial Indebtedness (including issuing any guarantee or making any loans or advances) other than in the ordinary course of owning and operating its Ship or as otherwise contemplated by this Agreement, except on terms that the same shall, in the case of unsecured indebtedness, rank no higher than pari passu with the Borrowers’ obligations under this Agreement and, in the case of any Financial Indebtedness incurred to any parent or affiliate of a Borrower is fully subordinated to the Borrowers’ and or the Corporate Guarantor’s obligations under the Finance Documents:
Appears in 1 contract
Negative undertakings. The Borrower will not:
(a) except carry on any type of business other than the ownership, chartering and operation of the Ship in connection accordance with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law)documents;
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution (other than payment of a dividend pursuant to Clause 12.4) or effect any form of redemption, purchase purchase, reduction or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurredissue, allot or grant any person a right to any shares in its capital; or
(iic) without the aggregate value prior written consent of the Ships then subject to a Mortgage Agent (as determined by a Recent Valuation ) is less than 140 per cent. acting on the instructions of the aggregate of the Loan Majority Lenders), which consent and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall instructions will not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) unreasonably be withheld, incur any debt or provide any form of credit or financial assistance to:
(iunless fully subordinated to the Loan and on terms otherwise acceptable to the Lenders) an Affiliate;
issue any guarantee to any person, (ii) a person who is directly or indirectly interested other than otherwise permitted in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connectedthis Agreement), or enter into any transaction with or involving such a person person, unless in the ordinary course of its normal shipping business; or
(d) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), open or company (including, without limitation, maintain any account with any bank or financial institution except accounts with the purchase from, sale to Account Bank or exchange for the purposes of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable Finance Documents and accounts notified to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower Agent prior to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return date of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).this Agreement; or
(e) acquire any shares or other securities other than the AmalgamationUS or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative; or
(f) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation, or change its name; or
(g) purchase any further assets (other than the Ship), either directly or indirectly (through subsidiaries); or
(h) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), which consent and instructions will not be unreasonably be withheld, incur any other Financial Indebtedness. Any shareholder loans, inter company loans, affiliate loans and third party loans to the Borrower shall be fully subordinated to the rights of the Creditor Parties under the Loan Agreement and the Finance Documents, on terms satisfactory to the Agent in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (EuroDry Ltd.)
Negative undertakings. The No Borrower will not:will, without the prior written consent of the Co-Arrangers (such consent not to be unreasonably withheld or delayed):
(a) except (in connection with the Amalgamation (including case of an Owner) carry on any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (business other than as may the ownership, chartering and operation of the Ship to be required owned by applicable law)it, the incurrence of obligations under the Shipbuilding Contract and the Finance Documents to which it is a party and activities incidental thereto and (in the case of the Holding Company) carry on any business other than the ownership of the Owners;
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurred; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iii) issue any company in or with which such a person is directly or indirectly interested or connectedguarantee to any person, or enter into any transaction with or involving such a person;
(c) (save for the Holding Company) open or maintain any account (other than any accounts already in existence at the date of this Agreement) with any bank or financial institution, except accounts with the Agent for the purposes of the Finance Documents;
(d) issue, allot or grant any person a right to any shares in its capital or company repurchase or reduce its issued share capital (other than, in the case of the Holding Company, an increase in its share capital as disclosed to and agreed by the Co-Arrangers prior to the date of signing of this Agreement);
(e) acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative (including, without limitation, the purchase from, sale to any interest or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management feescurrency swap).;
(ef) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; orreorganisation save that the Holding Company may take any such action to the extent that the surviving entity is not (in the sole opinion of the Co-Arrangers) materially financially weaker and assumes all obligations of the Holding Company under the Finance Documents to which it is a party;
(g) incur any other Financial Indebtedness except Financial Indebtedness to companies within the same beneficial or ultimate beneficial ownership of the Borrowers on a fully subordinated basis;
(h) purchase any further assets (other than the Ships), either directly or indirectly (through subsidiaries).
Appears in 1 contract
Sources: Loan Agreement (Alma Maritime LTD)
Negative undertakings. The Borrower undertakes and agrees with the Lender throughout the continuance of this Agreement and so long as any sum remains owing hereunder that the Borrower will not, unless the Lender otherwise agrees in writing:-
14.2.1 merge or consolidate with any other entity or take any step with a view to dissolution, liquidation or winding-up except for mergers and consolidations between the Frit▇ ▇▇▇up of Companies;
14.2.2 invest in any other entity or provide financing to any person (save to companies within the Frit▇ ▇▇▇up of Companies) except by way of trade credit in the ordinary course of its business;
14.2.4 (whether by a single transaction or a number of related or unrelated transactions and whether at one time or over a period of time) sell, transfer, lease out, lend or otherwise dispose of (whether outright, by a sale-and-repurchase or sale-and-leaseback arrangement, or otherwise) all or substantially all of its assets nor of any part of its assets which, either alone or when aggregated with all other disposals required to be taken into account under this paragraph, is substantial in relation to its assets, taken as a whole or the disposal of which (either alone or when so aggregated) could have a material adverse effect on it except for :-
(ai) disposals in the ordinary course of trading; and
(ii) any disposal which the Lender shall have agreed shall not be taken into account;
14.2.5 make or grant any loan or advance or guarantee or in any other manner be or become directly or indirectly or contingently liable for any indebtedness or other obligation of any other person, except as may be necessary in the ordinary course of its business;
14.2.6 create or attempt to create, and shall not suffer or permit any of its subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Charge upon or with respect to any part of its property, whether now owned or hereafter acquired, other than the following :-
(i) any Charge created by the Security Documents or previously disclosed in writing to and agreed by the Lender as of the date of this Agreement;
(ii) Charges for taxes, fees, assessments or other governmental charges which are not overdue or remain payable without penalty;
(iii) carrier's, warehousemen's, mechanics', landlords', materialmen's, repairmen's or other similar liens arising in the ordinary course of business which are not overdue or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(iv) Charges on the property of the Borrower or any of its subsidiaries securing the non-overdue performance of bids, trade contracts (other than for borrowed money), leases or statutory obligations, contingent obligations or 30 - 27 - surety and appeal bonds and other non-delinquent obligations of a like nature, in each case, incurred in the ordinary course of business; provided that all such Charges in the aggregate would not (even if enforced) cause a material adverse effect on the ability of the Borrower to perform its obligations hereunder and that none of such Charges secure any indebtedness;
(v) liens consisting of judgment or judicial attachment liens, provided that the enforcement of such liens is effectively stayed and all such liens in the aggregate at any time outstanding for the Borrower and its subsidiaries do not exceed S$1,000,000;
(vi) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the businesses of the Borrower and its subsidiaries;
(vii) Charges on assets of corporations which become the Borrower's subsidiaries after the date of this Agreement; provided that such Charges existed at the time the respective corporations became subsidiaries and were not created in anticipation thereof; provided that any indebtedness secured by such Charges shall not exceed twenty percent (20%) of the Borrower's total assets on an unconsolidated basis;
(viii) with the accounting or other management information systems of the Borrower or any of its subsidiaries;
(ix) liens securing obligations in respect of capital leases on assets subject to such leases; provided that such capital leases are otherwise permitted hereunder and that the indebtedness secured by such liens shall not exceed twenty percent (20%) of the Borrower's total assets on an unconsolidated basis and no such Charge which attaches after the date of this Agreement is on any software or data (including data pertaining to accounts receivable) used in connection with the Amalgamation (including accounting or other management information systems of the Borrower or any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles subsidiaries; and
(x) liens arising solely by virtue of incorporationany statutory or common law provision relating to banker's liens, byerights of set-lawsoff or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (a) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Borrower, and (b) such deposit account is not intended by the Borrower or any subsidiary to provide collateral to the depository institution;
14.2.7 borrow or raise credit save and except :-
(i) from the Lender pursuant to this Agreement;
(ii) from other banks or financial institutions for the purpose of its constitutional documents satisfying the Borrower's working capital requirements, provided that such parties' rights in respect of such borrowing or raising of credit is subordinated (other than in such manner as may be required by applicable law)the Lender) to the Lender's rights under the Facility;
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurred; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, indebtedness existing on the purchase from, sale to or exchange date of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable this Agreement and disclosed to the Borrower than those which it could obtain Lender; (iv) indebtedness incurred in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return ordinary course of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisationits business; or
Appears in 1 contract
Sources: Loan Agreement (Fritz Companies Inc)
Negative undertakings. The Borrower undertakes with each of the Lenders, the Agent and the Security Trustee that, from the date of this Agreement and so long as any moneys are owing under this Agreement, it will not, without the prior written consent of the Agent acting on the instructions of the Majority Lenders and (where the Agent considers it to be appropriate) on the advice of the Lenders’ Technical Adviser, (and/or any other of the Lenders’ Advisers) and, in respect of paragraphs (f), (g), (j) and (q) only, the prior written consent of the Security Trustee:
(a) except in connection with make any material change to the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law)Project specifications;
(b) change the nature of its business from the ownership and operation of ships (through its ownership terminate, rescind, vary, amend or waive, or acquiesce in any termination, rescission, variation, amendment or waiver of the GuarantorsProject Documents (or any of them) or of any provision of the Project Documents (or any of them) (and it will in any event notify the Agent and the Security Trustee forthwith of any termination, rescission, variation, amendment or waiver of any agreement referred to in this Agreement or which relates to the Project); or;
(c) enter into any substitute agreement for, or supplemental agreement to, any of the Project Documents;
(d) appoint any further or substitute Contractor or Operator;
(e) abandon the Project as provided for in clause 11.1(r) below;
(f) permit (save as contemplated by the Security Documents) any Encumbrance (other than a Permitted Encumbrance) to subsist, arise or be created or extended over all or any part of its present or future undertaking, assets, rights or revenues to secure or prefer any present or future Indebtedness of the Borrower or any other person;
(g) save in respect of any agreed funding to be provided by the Shareholders, whose rights and obligations shall be subordinated to those of the Lenders and the Security Trustee, hereunder, incur or permit to exist any loan other than a Short Term Loan not exceeding R5 million (five million Rand), any obligations in excess of the aggregate amount of R5 million (five million Rand) in respect of Borrowed Money or assume any liability under any guarantee, indemnity or other assurance against financial loss in respect of Borrowed Money in favour of, any person except under or pursuant to this Agreement and/or the Security Documents or any of them;
(h) incur or permit to exist any obligations in respect of interest rate swap and/or other interest rate hedging arrangements unless agreed with the Lenders;
(i) merge, consolidate with any other company or person or make any offer of shares in the Borrower to any other person or company;
(j) (save as contemplated by the Security Documents) other than in accordance with clause 9.4(m), sell, transfer, lease, lend or otherwise dispose of or cease to exercise direct control over the whole or any part of its present or future undertaking, assets, rights or revenues whether by one or a series of transactions related or not which may have a Material Adverse Effect;
(k) (A) declare or pay any dividend or make any other form distribution of distribution Subordinated Liabilities (other than the Annual Technical Support Fee and Management Fee) (whether in cash or effect any form in specie) in respect of redemption, purchase or return of its share capital if:
(i) an or any subordinated loan, interest or principal, unless the Historical Annual Debt Service Cover Ratio, the Forecast Annual Debt Service Cover Ratio, the Loan Life Cover Ratio and the Project Life Cover Ratio for the future years are respectively greater than 1,25:1, 1,25:1, 1,8:1 and 3:1 and provided further that no Potential Event of Default or Event of Default is continuing (the “Dividend Payment Ratio Undertaking”) save that payment of the Annual Technical Support Fee and the Management Fee shall be subject to the fulfilment of the Baseline Ratio Undertakings and subject further to there being no continuing Potential Event of Default has occurred; or
(ii) the aggregate value or Event of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination AmountDefault;
(d) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; or
Appears in 1 contract
Negative undertakings. The Each Borrower will not:
(a) except in connection with carry on any type of business other than the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment ownership, chartering and operation of its articles of incorporation, bye-laws, or any other of Ship in accordance with its constitutional documents (other than as may be required by applicable law)documents;
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution (other than payment of a dividend pursuant to Clause 12.4) or effect any form of redemption, purchase purchase, reduction or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurredissue, allot or grant any person a right to any shares in its capital; or
(iic) without the aggregate value prior written consent of the Ships then subject to a Mortgage Agent (as determined by a Recent Valuation ) is less than 140 per cent. acting on the instructions of the aggregate of the Loan Majority Lenders), which consent and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall instructions will not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) unreasonably be withheld, incur any debt or provide any form of credit or financial assistance to:
(iunless fully subordinated to the Loan and on terms otherwise acceptable to the Lenders) an Affiliate;
issue any guarantee to any person, (ii) a person who is directly or indirectly interested other than otherwise permitted in the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connectedthis Agreement), or enter into any transaction with or involving such a person person, unless in the ordinary course of its normal shipping business; or
(d) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), open or company (including, without limitation, maintain any account with any bank or financial institution except accounts with the purchase from, sale to Account Bank or exchange for the purposes of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable Finance Documents and accounts notified to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower Agent prior to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return date of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).this Agreement; or
(e) acquire any shares or other securities other than the AmalgamationUS or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative; or
(f) enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation, or change its name; or
(g) purchase any further assets (other than the Ship owned by such Borrower), either directly or indirectly (through subsidiaries); or
(h) without the prior written consent of the Agent (acting on the instructions of the Majority Lenders), which consent and instructions will not be unreasonably be withheld, incur any other Financial Indebtedness. Any shareholder loans, inter company/partnership loans, partnership interest owners’ loans, affiliate loans and third party loans to the Borrowers shall be fully subordinated to the rights of the Creditor Parties under the Loan Agreement and the Finance Documents, on terms satisfactory to the Agent in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (EuroDry Ltd.)
Negative undertakings. The Borrower will notEach Obligor must not do, or agree or attempt to do, any of the following things without the Financier’s prior written consent:
(a) except in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend create or permit to exist any amendment Security Interest over or affecting any of its articles Secured Property, and must procure that each other member of incorporation, bye-laws, the Group does not create or permit to exist any other Security Interest over or affecting any of its constitutional documents (other than as may be required by applicable law);
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemptionassets, purchase or return of share capital ifexcept for:
(i) an Event of Default or Potential Event of Default has occurredany Permitted Security Interest; or
(ii) an agreement with respect to the aggregate value acquisition of assets on title retention terms where that agreement was entered into in the Ships then subject ordinary course of its ordinary business;
(b) Dispose Of or Deal With an asset or attempt or agree to do so, other than a Mortgage Permitted Disposal;
(as determined by a Recent Valuation c) deposit money with any person in circumstances where that money is less than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided not repayable unless it or another person pays or discharges other indebtedness or performs or observes another obligation owed to that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amountperson or another person;
(d) without limiting clause 10.5(b), move any Secured Property outside Australia except in the ordinary course of its ordinary business;
(e) deal in any way with any person except at arm’s length in the ordinary course of its ordinary business for valuable commercial consideration;
(f) make any Distribution other than any Permitted Distribution;
(g) obtain or permit to exist any Finance Debt, and must procure that each other member of the Group does not obtain or permit to exist any Finance Debt, from any person other than Permitted Finance Debt;
(h) provide or continue to provide any form Finance Debt to any person other than any Permitted Finance Debt;
(i) call up or receive in advance of credit calls any uncalled capital, or financial assistance toapply any capital called up or received for any purpose other than towards satisfaction of the Secured Money;
(j) do, cause to be done or permit any act or omission which would cause the right to receive payment of any of its book debts or other debts or any other amounts owing to it under any other monetary claims to be prejudiced or adversely affected;
(k) release or compound any of its book debts or any security for any of its book debts or other debts or any other amounts owing to it under any other monetary claims or deal with any of them by way of assignment, barter, discount, exchange, factoring or set-off or offer any of them for sale or sell, assign or agree to sell or assign any of them;
(l) materially change the nature of the business which it carries on as at the date of this document, change its place of registration or incorporation;
(m) relocate its principal place of business outside Australia;
(n) not change its or its holding company’s legal or beneficial ownership (including a change by way of a sale of shares, transfer of shares, security over shares, dilution of ownership through the issue of further shares or otherwise) or a change in its or its holding company’s effective Control;
(o) permit any Marketable Securities forming part of the Secured Property to become liable to cancellation, forfeiture, avoidance or loss;
(p) request or consent to the removal of any of the Secured Property from any register on which it is recorded or registered;
(q) take steps to obtain protection under any statute or any other law which allows or causes the Financier’s rights in connection with the Secured Property to be prejudiced;
(r) change its name, ACN or ABN;
(s) in respect of the Material Documents:
(i) an Affiliateamend, restate, supplement, replace or vary any Material Document to which it is a party, or consent to any amendment, restatement, supplement, replacement or variation of any Material Document to which it is a party;
(ii) cancel, terminate, release, surrender, accept repudiation, repudiate, rescind, avoid or discharge (except by performance) all or part of any Material Document to which it is a person who party;
(iii) waive, extend or grant time or indulgence in respect of, any provision of any Material Document to which it is directly or indirectly interested in the Borrower’s share or loan capitala party; or
(iiiiv) do or permit anything which would enable or give grounds to another party to any company Material Document to do anything referred to in clauses 10.5(s)(i), 10.5(s)(ii) or with 10.5(s)(iii); or
(t) otherwise do or permit anything to be done as a result of which such a person the realisable value of the Secured Property is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, may be reduced or the rendering of Financier’s rights under any service by Finance Document are or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees)be prejudiced.
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; or
Appears in 1 contract
Negative undertakings. (1) The Borrower will further undertakes and covenants with the Lender that the Borrower shall not, except with the prior written consent of the Lender:
(a) except in connection with the Amalgamation (including undertake permit or effect any amendment within five Business Days following the Amalgamation) amend or permit any amendment form of its articles reorganization, reconstruction, amalgamation, takeover, change of incorporation, bye-laws, shareholders or any other scheme of its constitutional documents (other than as may be required by applicable law)compromise or arrangement affecting the Borrower;
(b) approve, permit or suffer any change the nature in ownership (whether registered or beneficial) or transfer of any part of its business from the ownership and operation of ships (through its ownership of the Guarantors); orissued share capital;
(c) declare sell, transfer, dispose of or pay encumber in any dividend way, whether by pledge, charge or make otherwise or lease, let, license or agree to sell, transfer, dispose of or encumber in any other form way, whether by mortgage, charge or otherwise, lease, let license, or part with possession of distribution or effect any form of redemption, purchase or return of share capital if:
(i) an Event of Default or Potential Event of Default has occurred; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less than 140 per cent. of the aggregate of the Loan its undertakings and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amountassets;
(d) provide make advances or loans to or issue guarantees on behalf of any form persons including but not limited to shareholders, directors, employees or affiliates but excluding the subsidiaries of credit or the Borrower (as the case may be) which will materially affect the financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in condition of the Borrower’s share or loan capital; or
(iii) any company in or with which such a person is directly or indirectly interested or connected, or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to (x) loans and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).;
(e) amend or change the Articles of Association of the Borrower, except to amend its Articles of Association to comply with the Indonesian company law, in such a way as to adversely affect the Lender's rights under this Agreement and/or the Security Documents, whether directly or indirectly;
(f) terminate any of its businesses which will substantially affect its financial condition;
(g) place the Lenders in a less favorable position relative to the other than lenders and financiers of the AmalgamationBorrower in terms of security and support.
(2) The Lender shall be entitled in its sole and unfettered discretion to make a decision whether or not any of the negative covenants mentioned above in Clause 13(1) may be, enter into or have been, breached by the Borrower therefore it shall be incumbent upon the Borrower to seek the written opinion of the Lender in any form circumstances where the possibility, however remote, may arise whereby a breach of amalgamation, merger or de-merger or any form of reconstruction or reorganisation; orthe negative covenants may occur. 29 14
Appears in 1 contract
Sources: Supply Agreement (Graham Field Health Products Inc)
Negative undertakings. The Borrower will not:
not (a) except in connection with without the Amalgamation (including any amendment within five Business Days following prior written consent of the Amalgamation) amend or permit any amendment of Security Trustee, its articles of incorporation, bye-laws, nominee or any other of its constitutional documents (other than Receiver) or as may be required by applicable law);
(b) change the nature of its business from the ownership and operation of ships (through its ownership otherwise permitted or not restricted under each of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital ifSenior Finance Documents:
(i) an Event of Default create or Potential Event of Default has occurred; or
permit to subsist any Encumbrance on or over the Secured Property or any part thereof or interest therein (ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) is less other than 140 per cent. of the aggregate of the Loan and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amount;
(d) provide any form of credit or financial assistance to:
(i) an AffiliateEncumbrance created hereby);
(ii) a permit any person who is directly other than the Chargor, the Security Trustee, any nominee of the Security Trustee or indirectly interested in any Receiver to be registered as holder of the Borrower’s share Secured Property or loan capital; orof any part thereof;
(iii) sell, transfer, assign or otherwise dispose of the Secured Property (other than a sale, transfer, assignment or disposal of all of the Shares to the Security Trustee) or any company part thereof or interest therein or attempt or agree so to do;
(iv) suffer or permit the Charged Company to cancel, increase, create or issue or agree to issue or put under option or agree to put under option any equity or other share capital or obligation now or hereafter convertible into equity or other share capital of or in the Charged Company of any class or with which call any uncalled capital provided, however, that the Charged Company may issue or agree to issue equity or other share capital to the Chargor provided that such a person equity or other share capital is directly or indirectly interested or connectedthe subject of an Encumbrance in favour of, or enter into any transaction with or involving such a person or company (including, without limitationand to the satisfaction of, the Security Trustee;
(v) suffer or permit the Charged Company to make any alteration to, grant any rights in relation to re-organise, redeem or purchase from, sale or otherwise reduce its equity or any other share capital or reserves or any uncalled or unpaid liability in respect thereof or reduce the amount (if any) for the time being standing to the credit of its share premium account or exchange capital redemption or other undistributable reserve in any manner save for any alteration as aforesaid which arises directly in connection with an issue of property with, equity or other share capital to the rendering Chargor which is permitted under paragraph (iv) above but which does not involve any action or event otherwise prohibited by this Clause 5.2(c)(v);
(vi) convene any meeting with a view either to the alteration of any service by or for, such person or company) on terms which are, of the provisions of the Charged Company’s Memorandum and Articles of Association in any respectway which would restrict the ability of the Security Trustee to exercise its rights under this Deed or to passing a resolution that such Charged Company be wound up;
(vii) do or cause or permit to be done anything which may in any material way (i) depreciate, less favourable jeopardise or otherwise prejudice the value or marketability of the Secured Property or (ii) prejudice the validity, binding effect or enforceability of the Encumbrances created or evidenced by this Deed; and
(viii) save as permitted pursuant to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing shall not apply to Clause 3.2 (x) loans Dividends and advances by the Borrower to the Borrower Parent to the extent that the Borrower may make Voting Rights), receive, retain or deal with any dividends, distributions, redemptions, purchases interest or return other moneys in respect of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisationSecured Property; orand
Appears in 1 contract
Sources: Charge Over Shares (Wakefield Cable Communications LTD)
Negative undertakings. The Borrower will not:
(a) except in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law);
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
(i) which would result in a breach of the financial covenants set out in Clause 12.4 or if an Event of Default or Potential Event of Default has occurred; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) occurred and is less than 140 per cent. of the aggregate of the Loan continuing unremedied and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amountunwaived;
(db) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iiiii) any company in or with which such a person is directly or indirectly interested or connected, ; or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing this shall not apply to (x) loans and advances by prevent or restrict the Borrower from on-lending Advances to members of the Group for the purposes permitted in accordance with the terms of this Agreement;
(c) reduce its issued share capital or issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital other than pursuant to the Borrower Parent to IPO;
(d) acquire any shares or other securities other than US or UK Treasury bills, certificates of deposit issued by major North American or European banks and shares in New Companies, or enter into any transaction in a derivative other than the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).Master Agreement;
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction reconstruction, reorganisation or reorganisationconsolidation;
(f) without the prior written consent of the Lender, permit a majority of the seats (other than vacant seats) on the board of directors of the Borrower to be held by persons other than persons who are either:
(i) nominated by the Borrower’s then current board of directors; or
(ii) appointed by persons as so nominated in accordance with (i) above; or
(g) save as permitted in paragraph (h) of this Clause 12.3, permit and shall procure that its shareholders shall not permit any one person (or associated (in the sole opinion of the Lender) persons) to hold more than 20 per cent of the Borrower’s issued share capital at any one time;
(h) permit and shall procure that its shareholders shall not permit less than 20 per cent of the Borrower’s issued share capital to vest in the ownership of members of the Palios and Margaronis families.
Appears in 1 contract
Negative undertakings. The Borrower will not:
(a) except in connection with the Amalgamation (including any amendment within five Business Days following the Amalgamation) amend or permit any amendment of its articles of incorporation, bye-laws, or any other of its constitutional documents (other than as may be required by applicable law);
(b) change the nature of its business from the ownership and operation of ships (through its ownership of the Guarantors); or
(c) declare or pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if:
(i) which would result in a breach of the financial covenants set out in Clause 12.4 or if an Event of Default or Potential Event of Default has occurred; or
(ii) the aggregate value of the Ships then subject to a Mortgage (as determined by a Recent Valuation ) occurred and is less than 140 per cent. of the aggregate of the Loan continuing unremedied and the Termination Amount Provided that the restriction set out in this sub-clause (c)(ii) shall not be applicable on a Qualifying Charter Date unless the aggregate value of the Ships as aforesaid is less than 125 per cent. of the aggregate of the Loan and the Termination Amountunwaived;
(db) provide any form of credit or financial assistance to:
(i) an Affiliate;
(ii) a person who is directly or indirectly interested in the Borrower’s share or loan capital; or
(iiiii) any company in or with which such a person is directly or indirectly interested or connected, ; or enter into any transaction with or involving such a person or company (including, without limitation, the purchase from, sale to or exchange of property with, or the rendering of any service by or for, such person or company) on terms which are, in any respect, less favourable to the Borrower than those which it could obtain in a bargain made at arms’ length Provided that the foregoing this shall not apply to (x) loans and advances by prevent or restrict the Borrower from on-lending Advances to members of the Group for the purposes permitted in accordance with the terms of this Agreement;
(c) reduce its issued share capital or issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital other than pursuant to the Borrower Parent to IPO;
(d) acquire any shares or other securities other than US or UK Treasury bills, certificates of deposit issued by major North American or European banks and shares in New Companies, or enter into any transaction in a derivative other than the extent that the Borrower may make dividends, distributions, redemptions, purchases or return of share capital pursuant to Clause 12.3(c) or (y) subject always to Clause 12.4, credit or financial assistance to any Guarantor (including amounts to pay ship management fees).Master Agreement;
(e) other than the Amalgamation, enter into any form of amalgamation, merger or de-merger or any form of reconstruction reconstruction, reorganisation or reorganisationconsolidation;
(f) without the prior written consent of the Lender, permit a majority of the seats (other than vacant seats) on the board of directors of the Borrower to be held by persons other than persons who are either:
(i) nominated by the Borrower’s then current board of directors; or
(ii) appointed by persons as so nominated in accordance with (i) above; or
(g) save as permitted in paragraph (h) of this Clause 12.3, permit and shall procure that its shareholders shall not permit any one person (or associated (in the sole opinion of the Lender) persons) to hold more than 25 per cent of the Borrower’s issued share capital at any one time;
(h) permit and shall procure that its shareholders shall not permit less than 25 per cent of the Borrower’s issued share capital to vest in the ownership of members of the Palios and Margaronis families.
Appears in 1 contract
Sources: Loan Agreement (Diana Shipping Inc.)