Borrowers’ Undertakings
Sample Clauses
SME Loan Agreement Representations and Warranties
The Borrower represents and warrants in respect of the Borrower and (to the best of the Borrower’s knowledge, information and belief having made due and careful enquiries) in respect of each guarantor of the Borrower (if any) and each member of the Group (if any) that:
(i) (a) all information supplied by the Borrower to the Bank is true, complete and accurate in all material respects and is not or will not be misleading in any respect and (b) where the Borrower has given
certifications and/or confirmations to the Bank in connection with the Covid-19 Credit Guarantee Scheme (including without limitation in any
Pre-Eligibility Application form), those certifications and/or confirmations are complete and correct in all respects; and
(ii) the Borrower has made full disclosure to the Bank of all information relating to the Borrower, each guarantor of the Borrower (if any) and each member of the Group (if any) and their respective businesses that would be material to or should be made known to any bank that is proposing to lend or has lent money to the Borrower; and
(iii) where applicable, it is duly incorporated (or constituted where applicable) and validly existing under the laws of its jurisdiction of incorporation (or establishment where applicable) and it has the power to own its assets and carry on its business as it is being conducted; and
(iv) where applicable, he/she is of full age and is not by reason of illness or incapacity (whether mental or physical), incapable of managing his/her own affairs and he/she has not become or been declared to be of unsound mind or become a ward of court; and
(v) he/she/it has the power to enter into, perform and deliver (and has taken all necessary action required to authorise his/her/its entry into, performance and delivery of) the letter of sanction and all security for the facilities to which he/she/it is or will be a party and the transactions contemplated by those documents; and
(vi) the obligations expressed to be assumed by him/ her/it in the letter of sanction and all security for the facilities to which he/she/it is or will be a party are legal, valid, binding and enforceable obligations and do not and will not conflict with:
(a) any law or regulation applicable to him/her/it and/or any of his/her/its assets;
(b) any agreement or instrument binding upon him/her/it or affecting any of his/her/its assets; and
(c) its constitutional documents (where applicable); and
(vii) he/she/it is in compliance with all applicable laws, regulations and practices and he/she/it holds and will keep in full force and effect and will comply with all authorisations, consents, approvals, waivers, resolutions, licences, permits, exemptions or registrations to ensure the letter of sanction and all security for the facilities to which he/she/it is a party or will be party is legal, valid, binding and enforceable and to enable him/her/it to validly perform his/her/its obligations thereunder; and
(viii) he/she/it has not breached any term or condition applicable to any facility and is not in breach of or in default under any agreement or document to which he/she/it is a party or by which he/she/it or any part of his/her/its assets may be bound which could have a material adverse impact on him/her/ it or on his/her/its ability to perform his/her/its obligations under the letter of sanction or any security for the facilities to which he/she/it is a party or will be party; and
(ix) he/she/it is the legal and beneficial owner of the relevant assets that are subject to the security and the assets are held by him/her/it free from any security interest (such as a mortgage, charge, pledge, lien, assignment or other security interest securing any obligation of any person, any title retention, preferential right, trust arrangement or other security agreement or arrangement having a similar effect), other than those notified to the Bank; and
(x) no litigation, arbitration or other proceedings have been started or threatened against him/her/it which could have a material adverse impact on him/her/it or on his/her/its ability to perform his/ her/its obligations under the letter of sanction or any security for the facilities to which he/she/it is a party or will be party; and
(xi) his/her/its centre of main interests (as the term is used in Article 3(1) of the Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings) is situated in Ireland and he/she/it has no establishment (as that term is used in such regulation) in any other jurisdiction, unless he/ she/it has notified the Bank otherwise in writing; and
(xii) he/she/it has been advised to take, and has been given full opportunity to take, independent legal advice on the letter of sanction and the actual and potential consequences of his/her/its execution of the letter of sanction, all security for the facilities and any other document specified in or contemplated by the letter of sanction to which he/she/it is or will be a party, including the terms and conditions set out in this booklet.
(xiii) any facility to which the terms and conditions in this booklet apply is being advanced for the purposes of the Borrower’s business, trade or profession and the Borrower is not acting as a “consumer” within the meaning of the acts and regulations listed below:
(i) The Consumer Credit Act 1995;
(ii) The Consumer Protection Act 2007;
(iii) The European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000;
(iv) The European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004;
(v) The European Union (Consumer Mortgage Credit Agreements) Regulations 2016.
These representations and warranties will be deemed to be repeated by the Borrower on the date of each drawdown or utilisation of any facility and on each day thereafter, by reference to the facts and circumstances existing on such date.
SME Borrower’s Covenants, Compliance and Indemnity
7.11 The Borrower covenants and agrees with and undertakes to the Bank that, for as long as any facility is available for utilisation or any amount is outstanding to the Bank in respect of any facility:
(i) the Borrower will not, without the prior consent in writing of the bank, create or agree to create or permit any mortgage, charge or other encumbrance of any nature over any of the assets or property of the Borrower; and
(ii) the Borrower, being a company, shall not alter its constitution, or being the trustee of a trust, will not alter the trust deed or constitution in a manner prejudicial to the Bank; and
(iii) the Borrower will pay promptly all creditors who would rank as preferential creditors in the event of an insolvency of the Borrower or upon the appointment of a receiver over any property of a company Borrower; and
(iv) the Borrower will promptly deliver to the Bank such up to date financial and other information in relation to the Borrower’s business as the Bank may from time to time require; and
(v) the Borrower will arrange for annual accounts for the Borrower’s business to be prepared, properly audited (or, if applicable, properly certified by an independent accountant) and sent to the Bank;
(vi) the facility will be used for the purpose set out in the letter of sanction; and
(vii) the Borrower will comply with all applicable laws relating to the business and property of the Borrower including, without limitation, laws relating to the health, safety, pollution or protection of the environment and the terms of any licence or other authorisation issued in connection therewith by any relevant authority; and
(viii) the Borrower will obtain and maintain at the Borrower’s expense all licences and authorisations required under any applicable law relating to the business and property of the Borrower and the Borrower will produce such licences or authorisations to the Bank on request; and
(ix) the Borrower will indemnify the bank and keep the Bank at all times indemnified against any and all actions, costs, demands, claims, losses or damage which the Bank may suffer or be put to by reason of any breach or non-observance by the Borrower of any such applicable laws or the terms of any such licences or other authorisations; and
(x) the Borrower will carry on the Borrower’s business in a proper and efficient manner; and
(xi) the Borrower will not (and will not allow any other party on the Borrower’s behalf to) sell, transfer or lease the whole of or any part of the Borrower’s present or future material assets or otherwise dispose of the whole of or any part of any such asset either in a single transaction or in a series of transactions, whether related or not and whether voluntarily or involuntarily without the Bank’s prior written consent; and
(xii) the Borrower will not make any significant change to the nature, constitution or management of the Borrower’s business and will not enter into any transaction with any person other than on arm’s length commercial terms in the ordinary course of the Borrower’s business; and
(xiii) there will be no change of control of the Borrower for the duration of the facilities without the Bank’s prior written consent.
In this regard, “change of control” means any change in direct or indirect ownership of the Borrower, any change in the power to control the composition or the majority of the board of directors of the Borrower and/or any person(s) (including any bodies corporate) gaining the power to direct the management and policies of the Borrower whether through ownership of shares, by contract or otherwise; and
(xiv) the Borrower will not enter into any joint venture, partnership or similar arrangement with any other person or make any significant acquisitions without the Bank’s prior written consent; and
(xv) the Borrower will promptly inform the Bank of:
(i) any material litigation, arbitration or other proceedings pending or threatened against the Borrower or any guarantor which could have a material adverse impact on the Borrower or any guarantor or on their ability to perform their respective obligations under the letter of sanction or any security for the facilities to which the Borrower is a party or will be party; and
(ii) any final letters of demand for payment received by the Borrower from any creditor, immediately upon becoming aware of it; and
(xvi) the Borrower will promptly inform the Bank if a breach occurs of any of the terms and conditions applicable to any facility; and
(xvii) the Borrower will facilitate an independent valuation(s) of any asset (including without limitation any land and/or buildings) and/or the Borrower’s business if requested to do so by the Bank at any time. Any such valuation(s) will be at the Borrower’s own expense and (unless agreed otherwise with the Bank) will be furnished by a valuer chosen from the Bank’s approved panel of valuers and addressed to the Bank. The Bank will be entitled to debit any fees or expenses relating to such valuation(s) to the Borrower’s working account or any other account which the Bank deems appropriate; and
(xviii) the Borrower will promptly do all such acts or execute all such documents as the Bank may reasonably specify (and in such form as the Bank may require in favour of the Bank or its nominee(s)):
(a) to perfect the security (which may include the execution of a mortgage, charge, assignment, pledge, lien, encumbrance or other security interest over all or any of the assets which are, or are intended to be, the subject of the letter of sanction); and
(b) for the exercise of any rights, powers and remedies of the Bank provided by or pursuant to the letter of sanction, the terms and conditions set out in this booklet, the security for the facilities or by operation of law.
Bank’s Certificate Binding
7.12 A certificate issued by any officer of the Bank as to any amount payable in respect of facilities will be final and binding on the Borrower save in the case of manifest error.
Breach and Variation
7.13 The Borrower and each guarantor (if any) agree and acknowledge that each of the terms and conditions applicable to a facility are for the benefit of the Bank and may be waived by the Bank at its absolute discretion without the consent of the Borrower or any guarantor. Any waiver by the Bank of any of the terms or conditions applicable to a facility will not constitute a general waiver of such term or condition. No failure or delay by the Bank in exercising any right, power or privilege granted to it will operate as a waiver thereof and no single or partial exercise of any such right, power or privilege will prevent the Bank from later exercising any such right, power or privilege. The rights and remedies provided for in the letter of sanction and this booklet are cumulative and not exclusive of any rights or remedies provided by law.
Debenture Representations
General
The Company makes the representations and warranties set out in this clause 11 (Representations) to the Lender in accordance with clause 11.14 (Times when representations made).
Status
It has been duly incorporated as a company and is validly existing under the laws of the jurisdiction of its incorporation.
It has the power to own its properties and assets and to carry on its business as currently conducted.
Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this Debenture and the transactions contemplated hereby.
It has the power to create any security constituted or to be constituted hereby and to perform its obligations hereunder.
Binding obligations
The obligations expressed to be assumed by it under this Debenture are legal, valid, binding and enforceable obligations.
Without limiting the generality of sub-clause (a) above, this Debenture creates the security interests which it purports to create and those security interests are valid and effective.
Non-conflict with other obligations
The entry into, performance by it of its obligations under, and the transactions contemplated by, this Debenture and the granting of the Security do not and shall not conflict with:
any law, rule or regulation to or by which it or any of its business, property or assets is subject or bound;
any judgment, order, injunction, determination, award or ruling of any court or arbitrator or any judicial, administrative or governmental authority to or by which it is subject or bound;
its constitution; or
any deed, agreement, franchise, concession, licence, treaty or other instrument to which it is a party or which may be binding upon it or which may materially affect its business or any of its properties or assets or constitute a default or termination event (however described) under any such agreement or instrument.
Validity and admissibility in evidence
All Authorisations required or desirable:
to enable it lawfully to enter into, exercise its rights and comply with its obligations in this Debenture;
to create the security contemplated hereby; and
to make this Debenture admissible in evidence,
have been (or shall be within any prescribed period in the case of any registration or filing) obtained or effected and are in full force and effect and all necessary fees required in connection therewith have been (or, as the case may be, shall be) paid.
Ownership of Secured Assets
It is, and shall at all times during the Security Period be, the sole, lawful and beneficial owner of all of the Secured Assets charged, mortgaged or, as the case may be, assigned, by it hereunder, free from any encumbrance (other than an encumbrance permitted pursuant to clause 6.1).
Except as otherwise agreed in writing by the Lender, it has not sold or granted any rights of pre-emption over, or agreed to sell or grant any right of pre-emption over, or granted or agreed to grant any lease or tenancy of, or otherwise disposed of or agreed to dispose of the benefit of all or any of its right, title and interest in and to, all or any part of the Secured Assets.
Security
The Security has or shall have the ranking in priority which it is expressed to have in this Debenture and it is not subject to any prior ranking or pari passu ranking security.
Insolvency
It has not taken any corporate action nor have any other steps been taken or legal proceedings been started or, to the best of its knowledge and belief, threatened against it for its winding-up, liquidation, examinership, dissolution or re-organisation or for the appointment of a receiver, Examiner, trustee or similar officer of any or all of its assets or revenues.
Investments
Save for any encumbrance permitted under clause 6.1, the Investments are duly authorised, validly issued and fully paid and are not subject to any claim, lien or option, or pre-emption rights.
No Relevant Company’s constitution does or could restrict or inhibit any transfer of shares on creation or enforcement of the security created over the Investments pursuant to this Debenture and, to the extent that the Companies Act imposes any such restriction or inhibition, the constitution of each Relevant Company provides otherwise.
Environmental laws
It is in compliance with all Environmental Law and it has obtained, and shall at all times during the subsistence of the Security obtain, and is in compliance with, all Environmental Permits.
There are no circumstances relating to any of the Secured Assets which have led, or could lead, to a competent authority or a third party taking any action or making a claim under any Environmental Law including the requirement to clean up any contaminated land or the revocation, suspension, variation or non-renewal of any Environmental Permits or to the Company having to take action to avert the possibility of any such action or claim where such action or claim could have an adverse effect on the value of any of the Secured Assets or on the ability of the Company to conduct any of its business or to perform its obligations under this Debenture.
No adverse claims
It has not received or acknowledged notice of any adverse claim by any person in respect of the Secured Assets or any interest in them.
There are no covenants, restrictions, agreements, stipulations or other matters whatsoever affecting the Secured Assets which conflict with its present use or adversely affect the value, saleability or use of any Secured Asset.
All material covenants, restrictions and stipulations affecting the Secured Assets have been observed and performed and no officer or servant of the Company has suffered or committed or caused any breach of any such material covenant, restriction or stipulation.
Planning Acts
Nothing has been done on or in relation to any of the Real Property which constitutes a “development” within the meaning of the Planning Acts without any requisite permission having been obtained and no situation exists in relation to any of the Real Property in respect of which a warning notice or an enforcement notice has been or may be made.
Times when representations made
The representations and warranties of the Company set out in this clause 11 (Representations) are made on the date of this Debenture, shall survive the execution of this Debenture and shall be correct and complied with in all respects and at all times during the continuance of the Security Period as if repeated therein by reference to the then existing circumstances.
Debenture Covenants
Insurances
The Company shall at all times during the continuance of the Security Period:
comply with all obligations with respect to the insurance of the Secured Assets including any obligations imposed by the terms of any lease, agreement for lease or tenancy under which the Company derives its estate or interest therein and, at the request of the Lender, produce evidence satisfactory to the Lender of such compliance;
notwithstanding and without prejudice to clause 12.1(a), cause all buildings, trade and other fixtures, fixed and other Plant and Equipment and other assets of an insurable nature forming part of the Secured Assets to be insured and kept insured:
in an insurance office or with underwriters acceptable to the Lender;
against loss or damage by fire and all such other risks as are customarily insured against in relation to assets of such nature by prudent companies carrying on businesses comparable (having regard to the nature of the Company’s business) to that of the Company and such other risks as may from time to time be specified in writing by the Lender at least to the full reinstatement or replacement value thereof (with adequate provision also being made for forward inflation, the cost of clearing the site and architects’, engineers’, surveyors’ and other professional fees incidental thereto and loss of rents or prospective rents for a period of not less than three years) and including insurance against consequential loss and liability to third parties and employees; and
with an indorsement on the policy or policies relating thereto of a note of the interest of the Lender therein specified as co-insured with the Company and further specified as sole loss payee save that, in the case of third party liability insurances, the Lender does not require its interest to be noted as co-insured and sole loss payee but rather it should be noted as an indemnified party under the indemnity to principal clause;
if so requested by the Lender, ensure that each policy of insurance relating to the Secured Assets (or, as the case may be, each such policy as may be specified by the Lender) contains such one or more of the following provisions as may be specified by the Lender:
a clause whereby the insurer agrees that the insurance effected shall not be invalidated or prejudiced so far as the Lender is concerned by any breach of the insuring conditions or any other act or omission unknown to or beyond the control of the Lender on the part of the Company or any tenant, lessee or licensee of any of the Secured Assets;
a waiver of all rights of subrogation against the Lender and the Company;
an undertaking by the insurer to notify the Lender promptly in writing if the premium or other monies payable under such policy are not paid when due and to refrain from cancelling such policy by reason only of the non-payment of such monies for a period of at least thirty days from the due date; and
a provision under which the proceeds of the insurance (other than third party liability insurance or employer’s liability insurance) are payable to the Lender;
duly and punctually pay all premiums and other monies payable under all such policies of insurance and do all other things necessary to keep that policy in full force and effect and promptly upon request by the Lender produce to the Lender a copy or sufficient extract of every such policy together with the premium receipts or other evidence of the payment thereof;
not do or omit to do, or permit to be done or omitted, any act or thing that may invalidate or otherwise prejudice any insurance policy maintained by it in accordance with clause 12.1(b) above; and
if so required by the Lender but subject to the provisions of any lease of any part of the Secured Assets, deposit all policies of insurance relating to the Secured Assets with the Lender or produce the same to the Lender for inspection.
If the Company fails to comply with any of the provisions of clause 12.1, the Lender may (but shall not be obliged to) effect or renew any such insurance as is mentioned in that clause either in its own name or in its name and that of the Company jointly or in the name of the Company with an indorsement of the Lender’s interest but in so doing the Lender shall not be subject to the requirements contained in section 110(2) of the Act. All monies expended by the Lender in so effecting or renewing any such insurance shall be reimbursed by the Company to the Lender on demand.
All monies received or receivable under any insurance relating to the Secured Assets shall (subject to the rights and claims of any person having prior rights thereto or any lessor or landlord of any part of the Secured Assets) be applied in accordance with clause 21 (Application of Monies) or, if the Lender shall so require, in repairing, replacing, restoring or rebuilding the property or assets damaged or destroyed. If any such monies shall be received by the Company, it shall (subject to the rights and claims of any person as aforesaid) hold such monies upon trust for the Lender pending payment to the Lender for application in accordance with clause 21 (Application of Monies) or, as the case may be, for application by the Company in repairing, replacing, restoring or rebuilding the property or assets damaged or destroyed.
Debenture Covenants
The Company hereby covenants with the Lender that at all times during the continuance of the Security Period it shall:
General
- comply with its obligations under or in respect of, and the requirements of any law relating to or affecting, the Secured Assets or use of them;
- conduct and carry on its business in a proper and efficient manner and not make any substantial alteration in the nature of, or mode of conduct of, that business;
- keep or cause to be kept proper books of account relating to such business and shall keep the said books of account and all other documents relating to the affairs of the Company at the Company’s registered office or other place or places where the same ought to be kept;
- punctually pay, as the same become due, all debts and liabilities which, by virtue of the provisions of any law relating to liquidation, bankruptcy, insolvency or creditors’ rights generally, would have priority to all or any part of the Security;
- without prejudice to the provisions of sub-clause (d) above, ensure that all value added tax liabilities, which if unpaid would or might with the service of any notice or otherwise have priority over the Security or require payment by the Lender, shall be paid and discharged when the same must be paid;
- perform and observe the covenants and conditions contained or comprised in any agreement from time to time made between any debtor of the Company and the Company and promptly inform the Lender of any event as soon as it becomes aware of same, or of the receipt of any notice (including any notice issued under section 1002 of the Taxes Consolidation Act 1997) which may adversely affect the fulfilment by the Company of any of its covenants or obligations hereunder or the Security;
- furnish to the Lender from time to time, and at such intervals as the Lender may from time to time require, such information regarding the assets and liabilities of the Company and any Subsidiaries of the Company as the Lender may require including, without prejudice to the generality of the foregoing, details of all stock-in-trade from time to time of the Company, copies of all and any statements relating to all claims from time to time of the Company together with details of the debtors and copies of all and any invoices rendered in respect of such claims and details of all debts which would, on a liquidation of the Company, be paid in priority to all other unsecured debts of the Company;
- pay, as and when the same must be paid, all taxes, rates, duties, charges, rent, assessments, fees and outgoings whatsoever and of any description which shall be assessed, charged or imposed upon or payable in respect of any of the Secured Assets (save to the extent that payment of the same is being contested in good faith);
- give the Lender such information concerning the location, condition, use and operation of the Secured Assets as the Lender may require;
- permit any persons designated by the Lender and/or any Receiver to enter on its premises and inspect and examine any Secured Asset and the records relating to that Secured Asset, at all reasonable times and on reasonable prior notice;
- obtain, promptly renew and comply with the terms of all Authorisations that are required in connection with the Secured Assets or their use or that are necessary to preserve, maintain or renew any
Secured Asset
- not (without the prior consent in writing of the Lender) redeem or purchase its own shares or form, acquire, or dispose of any Subsidiary;
- update and provide the Lender, at the Lender’s request, with a copy of the Company’s register of mortgages and charges;
- promptly, on becoming aware of the same, give the Lender notice in writing of:
- any representation or warranty set out in this Debenture that is incorrect or misleading in any material respect when made or deemed repeated; and
any breach of any covenant set out in this Debenture;Real Property, Plant and Equipment
- any representation or warranty set out in this Debenture that is incorrect or misleading in any material respect when made or deemed repeated; and
- observe and perform all covenants and stipulations from time to time affecting the Real Property or the mode of user or enjoyment of the same and not without the prior consent in writing of the Lender:
- enter into any onerous or restrictive obligations affecting the Real Property;
- create or permit to arise any overriding interest or any easement or right whatsoever in or on the Real Property which might adversely affect the value thereof;
- do or suffer to be done on the Real Property anything which is a “development” as defined in the Planning Acts as from time to time amended otherwise than in accordance with the provisions of the
Planning Acts
- do or suffer or omit to be done any act, matter or thing whereby any provision of law from time to time in force affecting the Real Property is infringed; nor
- do or suffer to be done any act or thing whereby any fee farm grant or lease is likely to become liable to forfeiture or otherwise be unilaterally determined by the landlord;
- keep all buildings, structures, fixtures and fittings (including trade fixtures and fittings), Plant and Equipment in good and substantial repair and in good working order and condition (fair wear and tear excepted) and not pull down or remove or materially alter or sell or otherwise dispose of any of the same without the prior consent in writing of the Lender except in the ordinary course of use, repair, maintenance or improvement and not do or omit to do anything which could reasonably be expected to result in any item of Plant and Equipment or any part thereof being confiscated, seized, requisitioned, taken in execution, impounded or otherwise taken out of the Company’s control;
- not (without the prior consent in writing of the Lender) grant or agree to grant (whether in exercise or independently of any statutory power) any lease or tenancy of the Real Property or any material part thereof;
- notify the Lender of any notice received in relation to the Real Property which might reasonably be expected to adversely affect the value of the Real Property or the Security therein and, within thirty days after receipt by the Company of any application, requirement, order or notice served or given by any public or local or any other authority with respect to any Secured Asset (or any material part thereof), give written notice thereof to the Lender and also (within seven days after demand) produce the same or a copy thereof to the Lender and inform it of the steps taken or proposed to be taken to comply with any such requirement thereby made or implicit therein;
- use, operate, maintain and control each item of Plant and Equipment in a careful and proper manner and in accordance with all licences, agreements, manufacturer’s recommendations (as originally drafted or as amended from time to time), statutes, laws, ordinances, and regulations relating to the use, operation, maintenance and control thereof and neither use nor knowingly permit any such items to be used for any unlawful purpose and ensure that any replacement or substitute parts are in good repair and working order and are free from any lien or other encumbrance whatsoever and are owned by the Company;
- keep each item of Plant and Equipment at the location or locations (if any) from time to time approved in writing by the Lender;
- if it has not already done so, in the case of any Plant and Equipment located on leasehold premises, obtain evidence in writing from any lessor of any such premises that he waives absolutely all and any rights he may have now or at any time in the future over any of such Plant and Equipment;
- if so requested by the Lender, place and maintain on each item of Plant and Equipment, in a conspicuous place, an identification plaque as appears below and not conceal, alter or remove such plaque or permit it to be concealed altered or removed:
Comply with all Environmental Law;
- obtain, maintain and ensure compliance with all requisite Environmental Permits;
- implement procedures to monitor compliance with and to prevent liability under any Environmental Law;
- within seven days of the receipt of notice of the same, inform the Lender in writing of:
- any Environmental Claim against the Company which is current, pending or threatened; and
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against the Company;
- any Environmental Claim against the Company which is current, pending or threatened; and
Liquor Licences
without prejudice to the generality of sub-clause (k) above, the Company shall:
- procure the assignment to the Lender of any Liquor Licence held by a nominee of the Company;
punctually pay any liquor licence duties annually payable on the renewal of a Liquor Licence; - comply with the Licensing Acts insofar as any of the provisions thereof relate to the Secured Premises;
not do anything whereby any Liquor Licence from time to time may be forfeited or extinguished or become void or voidable or whereby any privileges attached thereto may be lost or jeopardised;
give immediate notice in writing to the Lender of any notice received by it of any intention to oppose the renewal of any Liquor Licence; and - display any Liquor Licence in a prominent and conspicuous manner on any licensed premises forming part of the Secured Premises to which it applies and not to remove such Liquor Licence from such prominent and conspicuous location without the prior written consent of the Lender;
Investments
- not take or allow the taking of any action on its behalf which may result in the rights attaching to any of the Investments being altered or further shares in a Relevant Company being issued;
pay all calls and other payments due and payable in respect of the Shares and, if the Company fails to do so, the Lender may pay those calls or other payments on behalf of the Company; - comply with all requests for information which is within its knowledge and which are made under any law or by any listing or other authority or any similar provision contained in any constitution relating to any of its Investments;
- if any Shares are in, or are converted into, uncertificated form, promptly notify the Lender and:act on any instructions given by the Lender, and give such directions as the Lender may require in order to protect and preserve the Security; andtransfer those Shares to an escrow account in respect of which it has named as escrow agent the Lender or any nominee or agent of the Lender notified to the Company or any other person approved in writing by the Lender;
- ensure that the Shares are, and at all times remain, free from any restriction on transfer to the Lender or its nominee(s) or to any buyer from the Lender pursuant to the exercise of any rights or remedies of the Lender under or pursuant to this Debenture without requiring the consent of the directors of any Relevant Company or any other condition (including rights in relation to pre-emption) to be obtained or met;
- notify the Lender immediately upon the appointment of any additional or replacement director or officer of a Relevant Company and it shall provide the Lender with a letter of resignation and letter of authority in the form set out in Part VI (Form of Director/Secretary Resignation Letter) and Part VII (Form of Letter of Authority) of the Tenth Schedule (Share Deliverables) immediately upon such appointment; and
Intellectual Property
- preserve and maintain the subsistence and validity of the Intellectual Property necessary for its business;
- use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property;
- make registrations and pay all registration fees and taxes necessary to maintain the Intellectual Property in full force and effect and record its interest in that Intellectual Property;
- not use or permit the Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Intellectual Property which may materially and adversely affect the existence or value of the Intellectual Property or imperil the its right to use such property;
- not discontinue the use of the Intellectual Property or, without the prior written consent of the Lender, apply to amend any Intellectual Property;
Contracts
- diligently pursue any remedies available to it in respect of any breach of any Material Contract or Other Contract or in respect of any claim arising thereunder or in relation thereto; and
not, without the prior written consent of the Lender, make or agree to make any amendment, waiver or release of, or determine or settle, any of the Material Contracts or Other Contracts or permit any breach or default thereof or thereunder to exist.
Consequence of Breach
In the case of default by the Company in the performance of any of the covenants contained in clause 13.1 it shall be lawful for (but not obligatory upon) the Lender to do whatever may, in the Lender’s opinion, be necessary to make good such default, and all sums expended by the Lender in that behalf shall be added to the monies hereby secured and bear interest accordingly.