POST-COMPLETION COVENANTS. 13.1 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Purchasers shall (and shall procure that Raphael Bank as CCIA’s designee pursuant to clause 11.1 shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion (as the case may be) by the Seller to relieve and discharge the Seller from any Assumed Liabilities. 13.2 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Seller shall, at the Seller’s expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion Date (as the case may be) by the Purchasers to relieve and discharge the Purchasers from any Retained Liabilities. 13.3 The Seller and the Purchasers shall co-operate, to the extent reasonably requested by the other, in the handling and disposition of any action, suit, arbitration, proceeding, investigation or regulatory inquiry relating to any of the Assets and whether or not pending or threatened prior to Credit Card Completion (with respect to the Credit Card Assets), Completion (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final Completion. 13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed). 13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim. 13.6 Subject to paragraphs (a) to (c) below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or proceeding. The Indemnified Party shall at all times have the right to participate fully in the defence of any relevant action, suit or proceeding at its own expense and the counsel chosen to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided that: (a) subject to sub-clause (b) and (c) if, in the Indemnified Party’s reasonable opinion, the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, the value of the Receivables or the Goodwill (in the case of CCIA) or the business of any Seller’s Group Company (in the case of the Seller) or the business of any Purchasers’ Group Company (in the case of CCIA), then the relevant Indemnified Party shall control the defence of any such action, suit or proceeding (at its sole cost); (b) subject to sub-clause (c), if the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, both (i) the value of the Receivables or the Goodwill of the Business or the goodwill of any business of any member of the Purchaser’s Group and (ii) the goodwill of the business of any member of the Seller’s Group, then CCIA shall control the defence of any such action, suit or proceeding (at is sole cost); (c) no settlement of any action, suit or proceeding may be made by any Indemnifying Party which prejudices or is likely to prejudice, the goodwill of the Indemnified Party without its prior consent (not to be unreasonably withheld, delayed or conditioned). 13.7 If an Indemnifying Party does not assume the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party. 13.8 An Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding. 13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the other, which consent shall not be unreasonably withheld or delayed. 13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business in existence on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years: (a) as may be required by a Governmental Authority or Applicable Laws; (b) as may be reasonably necessary with respect to the prosecution or defence of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or (c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation. 13.11 Subject to clause 23.11, the Seller and the Purchasers (or their representatives) shall provide access to the other, and shall permit the other, at the other’s expense, to take copies of, the Records, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business that the Seller or the Purchasers is obliged to preserve and keep pursuant to clause 13.10 on being given reasonable notice requesting such access or copies. In addition, but subject to clause 23.11, the Seller and the Purchasers shall procure access by the other to any employees of the Seller’s Group and any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third party proceeding or investigation by any Governmental Authority or in connection with the Seller’s or the Purchasers’ right of access to the Records and other information set out in this clause. 13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other. 13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group Company shall save as permitted under the Transitional Services Agreement and this Agreement in any capacity: (a) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party; (b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part for the purpose of soliciting any Cardholder for any product, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or (c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with such a name; or (d) for a period of 18 months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any Seller’s Group Company from recruiting any Transferring Employee or Key Personnel by means of a general advertising campaign. 13.14 Notwithstanding the provisions of clause 13.13, the Seller undertakes that as from Credit Card Completion it shall not use and shall procure that no member of the Seller’s Group shall use any Personal Data contained in or derived from the Signing Date Account List or Customer Data and Files in contravention of Data Protection Legislation without any limitation in time. 13.15 If the Seller enters into an Authorised Guarantee Agreement in connection with the assignment of the Property Lease, the Purchasers will indemnify the Seller from and against any and all Losses which the Seller incurs (directly or indirectly) in relation to the Authorised Guarantee Agreement. 13.16 The provisions of Schedule 15 shall apply in relation to Unenforceability Allegations.
Appears in 1 contract
Samples: Agreement Relating to the Sale and Purchase of Monument Business
POST-COMPLETION COVENANTS. 13.1 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable10.1 Without prejudice to subclause 12.2(b), the Purchasers Purchaser shall maintain and make available to the Seller any books and records of any Group Company (or, if practicable, the relevant parts of those books and shall procure that Raphael Bank as CCIA’s designee records) existing at Completion and acquired pursuant to clause 11.1 this Agreement which are required by any member of the Seller’s Group for the purpose of (a) filing its tax returns or dealing with the relevant Taxation Authority in respect of such returns, (b) preparing the audited consolidated financial statements of the Seller’s Group for the 2006 financial year or (c) complying with applicable laws or regulation and, accordingly, the Purchaser shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion (as the case may be) upon being given reasonable notice by the Seller and subject to relieve and discharge the Seller from any Assumed Liabilities.
13.2 Except giving such undertaking as otherwise specifically provided in this Agreementto confidentiality as the Purchaser shall reasonably require, on procure that such books and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), records are made available to the Seller shall, for inspection (during business hours) and copying (at the Seller’s expense, perform ) for and only to the extent necessary for such acts purpose and for a period of six years from Completion (including procuring the necessary assistance of third parties) and execute or for such documents longer period as may be reasonably required after Credit Card Completion, Completion or under applicable law). In particular the Final Completion Date (as Purchaser shall use all reasonable endeavours to procure that the case may be) by the Purchasers to relieve and discharge the Purchasers from any Retained Liabilities.
13.3 The Seller and the Purchasers Group Companies shall co-operate, deliver to the extent reasonably requested by Seller at the other, in the handling and disposition of any action, suit, arbitration, proceeding, investigation or regulatory inquiry relating to any of the Assets and whether or not pending or threatened prior to Credit Card Completion (with respect to the Credit Card Assets), Completion (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final Completion.
13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall Seller’s reasonable cost as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed).
13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim.
13.6 Subject to paragraphs (a) to (c) below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or proceeding. The Indemnified Party shall at all times have the right to participate fully in the defence of any relevant action, suit or proceeding at its own expense and the counsel chosen to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided that:
(a) subject to sub-clause (b) and (c) if, in the Indemnified Party’s reasonable opinion, the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, the value of the Receivables or the Goodwill after Completion (in the case of CCIAa form consistent with past practice) or the business of any Seller’s Group Company (in the case of the Seller) or the business of any Purchasers’ Group Company (in the case of CCIA), then the relevant Indemnified Party shall control the defence of any such action, suit or proceeding (at its sole cost);
(b) subject to sub-clause (c), if the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, both (i) the value year end financial package required for the purposes of the Receivables or the Goodwill audited accounts of the Business or the goodwill of any business of any member of the PurchaserSeller’s Group and (ii) the goodwill control compliance package (in connection with Sxxxxxxx-Xxxxx legislation), and the Purchaser shall use all reasonable endeavours to procure at the Seller’s reasonable cost that the relevant members of the Group Companies’ management deliver the normal representation letters (in a form consistent with past practice) applied within the Group Companies for the Seller’s Group in relation to such financial information and to the extent that such information and letters have not been delivered to the Seller prior to Completion. The Seller undertakes to use all reasonable endeavours to procure the delivery of such information and letters in this subclause 10.1 prior to Completion and acknowledges that the Purchaser shall have no liability to the Seller in the event that any piece of information or letter is not delivered to the Seller.
10.2 The Seller shall maintain and make available to the Purchaser any books and records of the Seller or the members of the Seller’s Group (or, if practicable, the relevant parts of those books and records) which are required by the Purchaser’s Group and/or the Group for the purpose of (a) filing its tax returns or dealing with the relevant Taxation Authority in respect of such returns, (b) preparing the financial statements of the Group Companies and/or members of the Purchaser’s Group for the 2006 financial year or (c) complying with applicable laws or regulation (including disclosure obligations of any stock exchange in connection with the listing of any debt or equity securities which may be issued from time to time by any member of the Purchaser’s Group) and, accordingly, the Seller shall, upon being given reasonable notice by the Purchaser and subject to the Purchaser giving such undertaking as to confidentiality as the Seller shall reasonably require, procure that such books and records are made available to the Purchaser for inspection (during business hours) and copying (at the Purchaser’s expense) for and only to the extent necessary for such purpose and for a period of six years from Completion (or for such longer period as may be required under applicable law).
10.3 The Purchaser shall make available to the Seller and its advisers, as it shall nominate, all financial and ancillary information in respect of the 2006 financial year, that the Seller may request for the purpose of preparing the US corporate income tax reporting in relation to the Group Companies. The Purchaser shall provide the information required by the Seller at least 30 Business Days before the intended submission of the said reporting to the US Taxation Authority. The Seller shall request the information in writing and allow the Purchaser a reasonable delay to provide the said information.
10.4 The Purchaser shall inform the Seller, at least 30 Business Days before it is intended to submit the French income tax returns for the 2006 financial year, of any tax treatment of amortization or depreciation or impairment of assets, or any tax treatment in the timing of the recognition or accrual of income or expenses, which would be different from the tax treatment applied by the Seller for the 2005 financial year, for any of the Group Companies or any of the companies of the Purchaser’s Group to which assets of the Group Companies have been transferred and any merger, transfer of assets or transfer of shares involving the Group Companies. If, within 15 Business Days of receiving the said information, the Seller makes any representations to the Purchaser, those representations shall, to the extent that they are reasonable be taken into account for the computation of the taxable income or tax loss of the company concerned. For the avoidance of doubt, representations made by the Seller shall be regarded as reasonable where they are made in order to avoid an increase in any Tax liability in France of any member of the Seller’s GroupGroup or a decrease in any Pre-Completion Relief in France that would otherwise have been available except when said representations entail a material adverse effect for the Purchaser or the Group Companies, then CCIA shall control such material adverse effect to exclude any reduction in the defence carried forward tax losses available as at the Accounts Date for the Group Companies. It is specified that for the application of any such actionthis clause, suit or proceeding (at is sole cost);Pre-Completion Relief will not include the pre tax consolidation tax losses carried forward by the Group Companies.
(c) no settlement 10.5 If the parties, having negotiated in good faith for a period of any action15 Business Days, suit or proceeding may be fail to reach agreement as to whether the representations made by any Indemnifying Party which prejudices or is likely to prejudice, the goodwill of the Indemnified Party without its prior consent (not to be unreasonably withheld, delayed or conditioned).
13.7 If an Indemnifying Party does not assume the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party.
13.8 An Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding.
13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the otherpursuant to subclause 10.4 are reasonable, which consent shall not be unreasonably withheld or delayed.
13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business in existence on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years:
(a) as may be required by a Governmental Authority or Applicable Laws;
(b) as may be reasonably necessary with respect to the prosecution or defence of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or
(c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation.
13.11 Subject to clause 23.11, the Seller and the Purchasers (or their representatives) shall provide access to the other, and shall permit the other, at the other’s expense, to take copies of, the Records, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business that either the Seller or the Purchasers is obliged Purchaser may refer the matter for determination by a member of a leading international firm of chartered accountants (the Expert). The Expert shall be appointed by agreement between the parties and each party must act reasonably in agreeing on the choice of the Expert. The Expert shall decide the matter in question as an expert (and not as an arbitrator) and his decision shall be final, except in the case of manifest error. Both parties shall make all relevant information available to preserve and keep pursuant to clause 13.10 on being given reasonable notice requesting such access or copiesthe Expert. In addition, but subject to clause 23.11, The costs of the Seller and the Purchasers Expert shall procure access be borne by the other parties in such proportions as the Expert considers to any employees of be fair and reasonable in all the Seller’s Group and any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third party proceeding or investigation by any Governmental Authority or circumstances.
10.6 Other than in connection accordance with the Seller’s or the Purchasers’ right terms of access to the Records and other information set out in this clause.
13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other.
13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group Company shall save as permitted under the Transitional Services Agreement and this Agreement in any capacity:
the Trade Mxxx Licences, as soon as reasonably practicable, and (aunless otherwise agreed between the parties) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party;
(b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part for the purpose of soliciting any Cardholder for any product, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other no later than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or
(c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with such a name; or
(d) for a period of 18 twelve months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any Seller’s Group Company from recruiting any Transferring Employee or Key Personnel by means of a general advertising campaign.
13.14 Notwithstanding the provisions of clause 13.13Completion, the Seller undertakes that as from Credit Card Completion it shall not use and Purchaser shall procure that no member of the Seller’s Group shall use any Personal Data contained in or derived that, from the Signing Date Account List or Customer Data and Files in contravention of Data Protection Legislation without any limitation in time.
13.15 If the Seller enters into an Authorised Guarantee Agreement in connection with the assignment of the Property Leasesuch date, the Purchasers will indemnify the Seller from and against any and all Losses which the Seller incurs (directly or indirectly) in relation to the Authorised Guarantee Agreement.
13.16 The provisions of Schedule 15 shall apply in relation to Unenforceability Allegations.no
Appears in 1 contract
POST-COMPLETION COVENANTS. 13.1 Except as otherwise specifically provided in this Agreement, on and (a) Immediately after Credit Card Completion, the Completion Date Board (which, for the avoidance of doubt, shall include the directors appointed under Section 3.2(a)(v) above) shall pass certain resolutions authorizing certain additional operational matters in the form agreed to by the Company and the Final Completion Date Investor.
(as applicable)b) The Company agrees and covenants to the Investor that prior to the use of the Cash Consideration in full by the Company, the Purchasers Company shall not remove the Investor appointed director as a signatory to the Initial Bank Account or change its bank account authorization or limit for the Initial Bank Account without the Investor’s written consent. The Company further agrees and covenants to the Investor that the approval and signature of Xxxxxx Xxx Xxxx XXX shall be required for any payment or withdrawal that would reduce the balance in the Initial Bank Account below such amount as is equal to (i) US$147,107,302 (One Forty-Seven Million One Hundred Seven Thousand Three Hundred Two U.S. Dollars) minus (ii) the aggregate of all amounts previously paid or withdrawn with the approval and signature of Xxxxxx Xxx Xxxx XXX.
(c) To the extent not completed on the Completion Date, as soon as possible after Completion, the Investor shall procure that Raphael Bank as CCIA’s designee pursuant Tencent ParentCo to clause 11.1 shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) finalize formalities and execute sign all such documents as may be reasonably required after Credit Card Completion, reasonable to complete any post Completion or registration requirements to transfer the Final Completion (as the case may be) by the Seller to relieve and discharge the Seller from any Assumed Liabilities.
13.2 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Seller shall, at the Seller’s expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion Date (as the case may be) by the Purchasers to relieve and discharge the Purchasers from any Retained Liabilities.
13.3 The Seller and the Purchasers shall co-operate, to the extent reasonably requested by the other, in the handling and disposition of any action, suit, arbitration, proceeding, investigation or regulatory inquiry relating to any ownership of the Assets and whether or not pending or threatened prior Contributed IP to Credit Card Completion (with respect to the Credit Card Assets), Completion (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final CompletionBVICo.
13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed).
13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim.
13.6 Subject to paragraphs (a) to (c) below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or proceeding. The Indemnified Party shall at all times have the right to participate fully in the defence of any relevant action, suit or proceeding at its own expense and the counsel chosen to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided that:
(a) subject to sub-clause (b) and (c) if, in the Indemnified Party’s reasonable opinion, the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, the value of the Receivables or the Goodwill (in the case of CCIA) or the business of any Seller’s Group Company (in the case of the Seller) or the business of any Purchasers’ Group Company (in the case of CCIA), then the relevant Indemnified Party shall control the defence of any such action, suit or proceeding (at its sole cost);
(b) subject to sub-clause (c), if the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, both (i) the value of the Receivables or the Goodwill of the Business or the goodwill of any business of any member of the Purchaser’s Group and (ii) the goodwill of the business of any member of the Seller’s Group, then CCIA shall control the defence of any such action, suit or proceeding (at is sole cost);
(c) no settlement of any action, suit or proceeding may be made by any Indemnifying Party which prejudices or is likely to prejudice, the goodwill of the Indemnified Party without its prior consent (not to be unreasonably withheld, delayed or conditioned).
13.7 If an Indemnifying Party does not assume the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party.
13.8 An Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding.
13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the other, which consent shall not be unreasonably withheld or delayed.
13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business in existence on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years:
(a) as may be required by a Governmental Authority or Applicable Laws;
(b) as may be reasonably necessary with respect to the prosecution or defence of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or
(c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation.
13.11 Subject to clause 23.11, the Seller and the Purchasers (or their representatives) shall provide access to the other, and shall permit the other, at the other’s expense, to take copies of, the Records, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business that the Seller or the Purchasers is obliged to preserve and keep pursuant to clause 13.10 on being given reasonable notice requesting such access or copies. In addition, but subject to clause 23.11, the Seller and the Purchasers shall procure access by the other to any employees of the Seller’s Group and any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third party proceeding or investigation by any Governmental Authority or in connection with the Seller’s or the Purchasers’ right of access to the Records and other information set out in this clause.
13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other.
13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group Company shall save as permitted under the Transitional Services Agreement and this Agreement in any capacity:
(a) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party;
(b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part for the purpose of soliciting any Cardholder for any product, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or
(c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with such a name; or
(d) for a period of 18 months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any Seller’s Group Company from recruiting any Transferring Employee or Key Personnel by means of a general advertising campaign.
13.14 Notwithstanding the provisions of clause 13.13, the Seller undertakes that as from Credit Card Completion it shall not use and The Investor shall procure that no member its Affiliates who are parties thereto comply with their obligations under the Basic Documents to which they are parties.
(e) The Company, Sohu Search and Photon shall procure that their Affiliates who are parties thereto comply with their obligations under the Basic Documents to which they are parties.
(f) As soon as possible after Completion, the Company shall deliver to the Investor share certificates, duly issued in the name of the SellerInvestor and reflecting the Investor’s Group shall use any Personal Data contained in or derived from the Signing Date Account List or Customer Data and Files in contravention of Data Protection Legislation without any limitation in time.
13.15 If the Seller enters into an Authorised Guarantee Agreement in connection with the assignment ownership of the Property Lease, the Purchasers will indemnify the Seller from and against any and all Losses which the Seller incurs (directly or indirectly) in relation to the Authorised Guarantee AgreementSubscribed Shares.
13.16 The provisions of Schedule 15 shall apply in relation to Unenforceability Allegations.
Appears in 1 contract
POST-COMPLETION COVENANTS. 13.1 Except as otherwise specifically provided in this Agreement, on 8.1 As and after Credit Card when requested by the Purchaser or the Vendor following Completion, the Completion Date and the Final Completion Date (as applicable), the Purchasers shall (and shall procure that Raphael Bank as CCIA’s designee pursuant to clause 11.1 shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion Vendor or the Final Completion (Purchaser, as the case may be) by the Seller to relieve and discharge the Seller , shall take all actions (or refrain from taking any Assumed Liabilities.
13.2 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Seller shall, at the Seller’s expense, perform such acts (including procuring the necessary assistance of third partiesaction) and execute or procure to be executed all such documents further documents, forms, assignments, transfers, assurances and other things as may be reasonably required after Credit Card Completion, Completion the Purchaser or the Final Completion Date (Vendor, as the case may be, may reasonably consider necessary or appropriate to give full effect to the transactions contemplated in this Agreement. For this purpose, the Purchaser shall retain for a period of 5 (five) years from the Completion Date, or such longer period as may be prescribed by applicable law, all books, records and other information (whether stored electronically or otherwise) relating to the Group Companies existing on the Completion Date.
8.2 Subject to any confidentiality undertakings and in that event subject to similar confidentiality undertakings being given by the Purchasers to relieve and discharge receiving party, the Purchasers from any Retained Liabilities.
13.3 The Seller Vendor and the Purchasers Purchaser shall co-operate, provide or procure to be provided to the extent other party and their advisers all information in their possession or under their control that they shall from time to time reasonably requested by require (both before and after Completion) in connection with the other, in the handling business and disposition of any action, suit, arbitration, proceeding, investigation or regulatory inquiry relating to any affairs of the Assets Group Companies and whether will give or not pending or threatened prior procure to Credit Card Completion (with respect be given to the Credit Card Assets), Completion other party and its advisers such reasonable access (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final Completion.
13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed).
13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim.
13.6 Subject to paragraphs (a) to (c) below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or proceeding. The Indemnified Party shall at all times have including the right to participate fully in the defence of any relevant action, suit make copies) to all documents that contain or proceeding at its own expense and the counsel chosen relate to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided thatinformation.
8.3 The Vendor shall:
(a) subject to sub-clause (b) and (c) if, in the Indemnified Party’s reasonable opinion, the conduct assume as of the relevant actionCompletion Date any and all guarantees and other securities of any kind (including guarantees given to financial institutions, suit suppliers or proceeding (other third parties) that any Group Company has executed and/or assumed on behalf or for the benefit of any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, the value member of the Receivables or the Goodwill (in the case of CCIA) or the business of any SellerVendor’s Group Company (in the case of the Seller) or the business of any Purchasers’ Group Company (in the case of CCIA), then the relevant Indemnified Party shall control the defence of any such action, suit or proceeding (at its sole cost)Group;
(b) subject to sub-clause (c), if procure that the conduct of Group Companies be released from such guarantee or security no later than the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, both (i) the value of the Receivables or the Goodwill of the Business or the goodwill of any business of any member of the Purchaser’s Group and (ii) the goodwill of the business of any member of the Seller’s Group, then CCIA shall control the defence of any such action, suit or proceeding (at is sole cost);Completion Date; and
(c) no settlement of any action, suit or proceeding may be made by any Indemnifying Party which prejudices or is likely provide to prejudice, the goodwill Purchaser on the Completion Date written evidence (satisfactory to the Purchaser) that the obligations set out sub (a) and (b) above have been fulfilled.
8.4 The Purchaser undertakes to lend all reasonable assistance to the Vendor in connection with the performance of the Indemnified Party without its prior consent (not obligations referred to be unreasonably withheld, delayed or conditioned)in Clause 8.3.
13.7 If an Indemnifying Party does not assume the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party.
13.8 An Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding.
13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the other, which consent shall not be unreasonably withheld or delayed.
13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business in existence on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years8.5 The Purchaser shall:
(a) assume as may be required by a Governmental Authority of the Completion Date any and all guarantees and other securities of any kind (including guarantees given to financial institutions, suppliers or Applicable Lawsother third parties) that the Vendor or any member of the Vendor’s Group has executed and/or assumed on behalf or for the benefit of the Group Companies;
(b) as may be reasonably necessary with respect to the prosecution or defence of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or
(c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation.
13.11 Subject to clause 23.11, the Seller and the Purchasers (or their representatives) shall provide access to the other, and shall permit the other, at the other’s expense, to take copies of, the Records, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business procure that the Seller or the Purchasers is obliged to preserve and keep pursuant to clause 13.10 on being given reasonable notice requesting such access or copies. In addition, but subject to clause 23.11, the Seller and the Purchasers shall procure access by the other to any employees of the Seller’s Group and any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third party proceeding or investigation by any Governmental Authority or in connection with the Seller’s or the Purchasers’ right of access to the Records and other information set out in this clause.
13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other.
13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group Company shall save as permitted under the Transitional Services Agreement and this Agreement in any capacity:
(a) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party;
(b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part for the purpose of soliciting any Cardholder for any product, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or
(c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with such a name; or
(d) for a period of 18 months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (Vendor or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any SellerVendor’s Group Company be released from recruiting any Transferring Employee and all such guarantee or Key Personnel by means of a general advertising campaignsecurity no later than the Completion Date; and
(c) provide to the Vendor on the Completion Date written evidence (satisfactory to the Vendor) that the obligations set out sub (a) and (b) above have been fulfilled.
13.14 Notwithstanding 8.6 The Vendor undertakes to lend all reasonable assistance to the provisions of clause 13.13, the Seller undertakes that as from Credit Card Completion it shall not use and shall procure that no member of the Seller’s Group shall use any Personal Data contained in or derived from the Signing Date Account List or Customer Data and Files in contravention of Data Protection Legislation without any limitation in time.
13.15 If the Seller enters into an Authorised Guarantee Agreement Purchaser in connection with the assignment performance of the Property Leaseobligations referred to in Clause 8.5.
8.7 The Purchaser acknowledges that all insurance policies currently maintained by the Group Companies and listed in Annex 8.1 of the Vendor Warranties shall be terminated and cease to provide cover with effect on Completion. The Purchaser shall be fully responsible for maintaining insurance coverage in respect of the Group Companies as it deems appropriate following Completion.
8.8 The Vendor undertakes to lend all reasonable assistance to the Purchaser and the Group Companies in connection with Tax matters relating to the Group Companies for the period preceding Completion. For this purpose, the Purchasers will indemnify Vendor shall retain for a period of 5 (five) years from the Seller from Completion Date all books, records and against any and all Losses which the Seller incurs other information (directly whether stored electronically or indirectlyotherwise) in relation relating to Tax matters relating to the Authorised Guarantee AgreementGroup Companies in the period preceding Completion to the extent such books, records and information remain with the Vendor following Completion.
13.16 8.9 The provisions Vendor and the Purchaser shall lend to each other all reasonable assistance as may be requested by the Purchaser or the Vendor, as the case may be, for the purpose of Schedule 15 shall apply in relation to Unenforceability Allegationsensuring that the requesting party can promptly comply with its financial reporting and tax compliance obligations following Completion.
Appears in 1 contract
Samples: Acquisition Agreement (Armstrong World Industries Inc)
POST-COMPLETION COVENANTS. 13.1 Except 10.1 Without prejudice to subclause 12.2(b), for a period of three years after Completion in the case of tax records, data and information and 12 months after Completion in the case of all other records, data and information but, in each case, if a Warranty Claim is in existence on the expiry of the relevant period, for such longer period until the Warranty Claim is finally determined, the Purchaser shall retain, and shall procure that the Group Companies shall retain, all material records, data and information existing as otherwise specifically provided in this Agreement, on and after Credit Card Completion, at the Completion Date and relating to the Final Group Companies acquired pursuant to this agreement.
10.2 The Purchaser shall procure the relevant Group Company to promptly make available to the Sellers such information as the Sellers may reasonably require to enable them to comply with their legal obligations in relation to Taxation, including any information necessary to enable the Sellers to file any tax returns with a relevant Taxation Authority.
10.3 Other than in accordance with the terms of the Transaction Documents, with effect from Completion Date (as applicable), the Purchasers shall (and Purchaser shall procure that Raphael Bank as CCIA’s designee pursuant to clause 11.1 shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion (as the case may be) by the Seller to relieve and discharge the Seller from any Assumed Liabilities.
13.2 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Seller shall, at the Seller’s expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be reasonably required after Credit Card Completion, Completion or the Final Completion Date (as the case may be) by the Purchasers to relieve and discharge the Purchasers from any Retained Liabilities.
13.3 The Seller and the Purchasers shall co-operate, to the extent reasonably requested by the other, in the handling and disposition of any action, suit, arbitration, proceeding, investigation or regulatory inquiry relating to any of the Assets and whether or not pending or threatened prior to Credit Card Completion (with respect to the Credit Card Assets), Completion (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final Completion.
13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed).
13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim.
13.6 Subject to paragraphs (a) to (c) below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or proceeding. The Indemnified Party shall at all times have the right to participate fully in the defence of any relevant action, suit or proceeding at its own expense and the counsel chosen to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided thatno Group Company:
(a) subject to sub-clause uses or displays (bincluding on or in its business stationery, documents, signs, promotional materials or website) and (c) ifany name, in mxxx or logo which is the Indemnified Party’s reasonable opinion, the conduct of the relevant action, suit same as or proceeding (or any incidental negotiations) has materially prejudicedsimilar to, or is reasonably likely to materially prejudicebe confused with, the value any name, mxxx or logo of a member of the Receivables or the Goodwill (in the case of CCIA) or the business of any Seller’s Group Company (in the case of the Seller) or the business of any PurchasersSellers’ Group Company (in the case of CCIA)use at Completion, then the relevant Indemnified Party shall control the defence of any such action, suit including “UPC” or proceeding (at its sole cost);“chello”; or
(b) subject to sub-clause (c), if the conduct of the relevant action, suit or proceeding (or represents that either Seller nor any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, both (i) the value of the Receivables or the Goodwill of the Business or the goodwill of any business of any other member of the Purchaser’s Sellers’ Group and (ii) retains any on-going connection with the goodwill of the business of any member of the Seller’s Group, then CCIA shall control the defence of any such action, suit or proceeding (at is sole cost);
(c) no settlement of any action, suit or proceeding may be made by any Indemnifying Party which prejudices or is likely to prejudice, the goodwill of the Indemnified Party without its prior consent (not to be unreasonably withheld, delayed or conditioned)Group Companies.
13.7 If an Indemnifying Party does not assume the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party.
13.8 An Indemnified Party shall make available to the Indemnifying Party and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, all books and records of the Indemnified Party relating to any such possible claim for indemnification, and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding.
13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the other, which consent shall not be unreasonably withheld or delayed.
13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business in existence on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years:
(a) as may be required by a Governmental Authority or Applicable Laws;
(b) as may be reasonably necessary with respect to the prosecution or defence of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or
(c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation.
13.11 Subject to clause 23.11, the Seller and the Purchasers (or their representatives) shall provide access to the other, and shall permit the other10.4 Following Completion, at the other’s expense, to take copies ofnext annual general meeting of each Group Company, the RecordsPurchaser undertakes to grant, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business that the Seller or the Purchasers is obliged to preserve and keep pursuant to clause 13.10 on being given reasonable notice requesting such access or copies. In addition, but subject to clause 23.11, the Seller and the Purchasers shall procure access by the other to any employees of the Seller’s Group and any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third party proceeding or investigation by any Governmental Authority or in connection with the Seller’s or the Purchasers’ right of access to the Records and other information set out in this clause.
13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other.
13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group the Company shall save as permitted under and each relevant Subsidiary will grant, the Transitional Services Agreement and this Agreement directors who resigned on Completion, discharge from liability for their administration until Completion, provided that, in any capacity:
(a) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party;
(b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part auditors’ reports for the purpose of soliciting any Cardholder for any productrelevant period, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or
(c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with ’s auditors do not recommend against such a name; or
(d) for a period of 18 months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any Seller’s Group Company from recruiting any Transferring Employee or Key Personnel by means of a general advertising campaigndischarges.
13.14 Notwithstanding the provisions of clause 13.13, the Seller undertakes that as from Credit Card Completion it shall not use and shall procure that no member of the Seller’s Group shall use any Personal Data contained in or derived from the Signing Date Account List or Customer Data and Files in contravention of Data Protection Legislation without any limitation in time.
13.15 If the Seller enters into an Authorised Guarantee Agreement in connection with the assignment of the Property Lease, the Purchasers will indemnify the Seller from and against any and all Losses which the Seller incurs (directly or indirectly) in relation to the Authorised Guarantee Agreement.
13.16 The provisions of Schedule 15 shall apply in relation to Unenforceability Allegations.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Share Capital (Liberty Global, Inc.)
POST-COMPLETION COVENANTS. 13.1 Except as otherwise specifically 9.1 The Purchaser undertakes to the Seller, that from Completion until the 6th (sixth) anniversary thereafter or such earlier time that Seller has provided in this Agreement, on written notice to Purchaser that the information and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicable), the Purchasers shall (and shall procure that Raphael Bank as CCIA’s designee pursuant to clause 11.1 shall), at the Purchasers’ expense, perform such acts (including procuring the necessary assistance of third parties) and execute such documents as may be access described below is no longer reasonably required after Credit Card Completion, Completion or the Final Completion (as the case may be) by the Seller (provided, that Purchaser shall give thirty (30) days’ notice to relieve Seller prior to destroying any records to permit the Seller, at its expense, to examine, duplicate or repossess such books and discharge the Seller from any Assumed Liabilities.
13.2 Except as otherwise specifically provided in this Agreement, on and after Credit Card Completion, the Completion Date and the Final Completion Date (as applicablerecords), the Seller shall, at the Seller’s expensesole cost, perform such acts upon reasonable notice at reasonable times during normal business hours (i) it shall promptly afford (and will procure that the Company promptly affords) to the Seller and its Authorised Representatives, reasonable access to the books, records, officers and employees of the Company, (ii) shall use reasonable endeavours to provide access to any audit records in the possession of its auditors, and (iii) shall provide information with respect to the Company, in the case of (i), (ii) and (iii), solely with respect to periods prior to the Completion Date, in a readily accessible form (including procuring financial information in a form consistent with the necessary assistance Company’s historical practice for the preparation of third parties) and execute such documents as may be reasonably required after Credit Card Completionfinancial information), Completion or to the Final Completion Date (as extent in the case may be) by the Purchasers to relieve and discharge the Purchasers from any Retained Liabilities.
13.3 The Seller and the Purchasers shall co-operatePurchaser’s possession, in each case, to the extent reasonably requested required by the other, in the handling and disposition of any action, suit, arbitration, proceeding, investigation Seller or regulatory inquiry relating to any of its Affiliates for any lawful business purpose related to its prior ownership of the Assets Company, the transactions contemplated by this Agreement or to comply with Applicable Law, including litigation (other than with the Purchaser or any of its Affiliates (including the Company), disputes (other than with the Purchaser or any of its Affiliates (including the Company), compliance, financial and whether Tax reporting, and the Purchaser shall cooperate fully with the Seller or its relevant Affiliates provided that such access does not pending unreasonably interfere with the conduct of the business of Purchaser or threatened the Company. Purchaser shall not be required to disclose any information if Purchaser reasonably determines that: (i) information is subject to attorney-client privilege to the extent doing so would reasonably be expected to cause such privilege to be waived; or (ii) disclosure may contravene any Applicable Law, fiduciary duty or agreement. The Parties will use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the preceding sentence applies to the extent commercially practicable.
9.2 The Seller undertakes to the Purchaser, that from Completion until the 6th (sixth) anniversary thereafter or such earlier time that the Purchaser has provided written notice to the Seller that the information and access described below is no longer reasonably required by the Purchaser (provided, that the Seller shall give thirty (30) days’ notice to the Purchaser prior to Credit Card Completion destroying any such records to permit the Purchaser, at its expense, to examine, duplicate or repossess such books and records), at the Purchaser’s sole cost upon reasonable notice at reasonable times during normal business hours, (i) it shall promptly afford (and will procure that each member of the Retained Seller Group promptly affords) to the Purchaser and its Authorised Representatives, reasonable access to the books, records, officers and employees of the Seller and each relevant member of the Retained Seller Group, and (ii) shall provide information with respect to the Credit Card Assets)Company, Completion (with respect to the Infrastructure Assets other than the Information Technology Infrastructure Assets) and Final Completion (with respect to the Information Technology Infrastructure Assets) which arise out of or which are related to any event or occurrence with respect to the Credit Card Assets prior to Credit Card Completion, the Infrastructure Assets (other than the Information Technology Infrastructure Assets) prior to Completion and the Information Technology Infrastructure Assets prior to Final Completion.
13.4 If the Seller becomes aware after Credit Card Completion or Completion (as applicable) of any claim made or likely to be made against the Seller which constitutes or is likely to constitute an Assumed Liability, the Seller shall as soon as reasonably practicable give written notice of that claim to the Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior consent of the Purchasers (such consent not to be unreasonably withheld or delayed).
13.5 Upon becoming aware of any action, suit or proceeding brought by any person who is not a party to this Agreement which may give rise to a claim or potential claim under which a party to this Agreement may be entitled to the benefit of an indemnity under clause 11 and/or clause 12 of this Agreement, the person having the benefit of that indemnity (the “Indemnified Party”) shall notify the party liable under that indemnity (the “Indemnifying Party”) by written notice of that claim, which notice shall include details of the nature and amount, or potential amount, of that claim.
13.6 Subject to paragraphs (a) to (c) below and clause 13.7, an Indemnifying Party may, at its sole cost and expense, control the defence of any such action, suit or proceeding. The Indemnified Party shall at all times have the right to participate fully in the defence of any relevant action, suit or proceeding at its own expense and the counsel chosen to conduct such defence shall be such counsel as is reasonably acceptable to the Indemnified Party, provided that:
(a) subject to sub-clause (b) and (c) if, in the Indemnified Party’s reasonable opinion, the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, or is likely to materially prejudice, the value of the Receivables or the Goodwill (in the case of CCIA(i) and (ii), solely with respect to periods prior to the Completion Date, in a readily accessible form, to the extent in the possession Seller or another member of the business of any Seller’s Group Company (in the case of the Seller) or the business of any Purchasers’ Group Company (in the case of CCIA), then the relevant Indemnified Party shall control the defence of any such action, suit or proceeding (at its sole cost);
(b) subject to sub-clause (c), if the conduct of the relevant action, suit or proceeding (or any incidental negotiations) has materially prejudiced, third-party service provider to the Seller or is likely to materially prejudice, both (i) the value of the Receivables or the Goodwill of the Business or the goodwill of any business of any member of the Purchaser’s Group and (ii) the goodwill of the business of any another member of the Seller’s Group, then CCIA shall control in each case, to the defence extent reasonably required by the Purchaser or any of its Affiliates for any such action, suit or proceeding (at is sole cost);
(c) no settlement lawful business purpose related to their ownership and operation of any action, suit or proceeding may be made by any Indemnifying Party which prejudices or is likely to prejudicethe Company, the goodwill transactions contemplated by this Agreement or to comply with Applicable Law, including litigation (other than with the Seller or any of its Affiliates), disputes (other than with the Seller or any of its Affiliates), compliance, financial and Tax reporting provided that such access does not unreasonably interfere with the conduct of the Indemnified Party without its prior consent business of Seller. The Seller shall not be required to disclose any information if the Seller reasonably determines that: (not i) information is subject to attorney-client privilege to the extent doing so would reasonably be expected to cause such privilege to be unreasonably withheldwaived; or (ii) disclosure may contravene any Applicable Law, delayed fiduciary duty or conditioned).
13.7 If an Indemnifying Party does not assume agreement. The Parties will use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the defence of any action, suit or proceeding in accordance with its right under clause 13.6 within 40 Business Days after delivery of a notice served on it in accordance with clause 13.5 and proceed to defend such action, suit or proceeding thereafter, the Indemnified Party may assume the defence of such action, suit or proceeding at the cost and expense of the Indemnifying Party.
13.8 An Indemnified Party shall make available preceding sentence applies to the Indemnifying Party extent commercially practicable. Seller and its counsel and accountants at reasonable times and for reasonable periods, during normal business hours, Purchaser agree that all books and records of the Indemnified Party relating to any such possible claim for indemnificationCompany (which includes, but is not limited to, emails and each of the Indemnified Party and the Indemnifying Party will render to the other such assistance as it may reasonably require of the other to ensure prompt and adequate defence of any suit, claim or proceeding.
13.9 Each of the Indemnified Party and the Indemnifying Party shall render to the other such assistance as may be reasonably required in order to ensure the proper and adequate defence of any such action, suit or proceeding. Neither the Seller nor the Purchasers shall admit any Liability or make a settlement of any claim for which indemnity is or will be sought without the written consent of the other, which consent shall not be unreasonably withheld or delayed.
13.10 For the avoidance of doubt, the Seller (to the extent that such Records, Copy Records and any other information are in the possession or control of or held on behalf of any member of the Seller’s Group) and the Purchasers shall preserve and keep all Records, Copy Records and all other information correspondence relating to the accountingCompany’s business), business, financial and Tax affairs of the Business in existence including information contained electronically on the Final Completion Date or that come into existence after the Final Completion Date but which relate to the Business prior to the Final Completion Date for such period, not less than six years:
(a) as may be required by a Governmental Authority or Applicable Laws;
(b) as may be reasonably necessary with respect to the prosecution or defence computer systems of any audit, suit, action, litigation or administrative arbitration or other proceeding or investigation that is then pending or threatened and which it is aware; or
(c) that is equivalent to the period established by any applicable statute of limitations (or any extension or waiver of it) with respect to matters pertaining to Taxation.
13.11 Subject to clause 23.11, the Seller and the Purchasers (or their representatives) shall provide access to the other, and shall permit the other, at the other’s expense, to take copies of, the Records, the Copy Records and all other information relating to the accounting, business, financial and Tax affairs of the Business that the Seller or the Purchasers is obliged to preserve and keep pursuant to clause 13.10 on being given reasonable notice requesting such access or copies. In addition, but subject to clause 23.11, the Seller and the Purchasers shall procure access by the other to any employees members of the Seller’s Group and or any employees of the Purchasers’ Group, respectively, on being given reasonable notice requesting such access, as may be reasonably necessary for the purposes of any audit, suit, action, litigation or administrative arbitration or other third third-party proceeding or investigation by any Governmental Authority or in connection with the Seller’s or the Purchasers’ right of access service provider to the Records and other information set out in this clause.
13.12 Each party shall promptly following receipt thereof give to the other a copy of all payments, notices, correspondence, information or enquiries in relation to the Credit Assets which it receives after Credit Card Completion and in relation to the Business or the Infrastructure Assets which it receives after Completion and which belongs to the other.
13.13 The Seller agrees with the Purchasers that the Seller shall not and shall procure that no Seller’s Group Company shall save as permitted under the Transitional Services Agreement and this Agreement in any capacity:
(a) after Credit Card Completion sell (or purport to sell) the Signing Date Account List in whole or in part to any third party;
(b) for a period of 3 years after Credit Card Completion: (i) provide the Signing Date Account List in whole or in part to any third party; or (ii) use the Signing Date Account List in whole or in part for the purpose of soliciting any Cardholder for any product, including any credit card, whether indirectly or indirectly; or (iii) use any of the information relating exclusively to Cardholders derived from the Customer Data and Files or the Signing Date Account List to conduct marketing activities directed solely or primarily at the Cardholders for any product including any credit card provided that this clause 13.13 shall not restrict the Seller or any Seller’s Group Company from conducting any marketing activities using any information other than derived from the Signing Date Account List or the Customer Data and Files (including information acquired from a third party or information derived from a Cardholder by reason of that Cardholder also being or becoming a customer in a capacity other than a Cardholder of any Seller’s Group Company); or
(c) save as permitted in the Licence Back, at any time after Credit Card Completion use or permit (or purport to permit) any third party to use the name “Monument” or any other name intended or likely to be confused with such a name; or
(d) for a period of 18 months after Completion induce or attempt to induce any person who is a Transferring Employee or Key Personnel to leave the employment of CompuCredit UK (or any member of the Purchasers’ Group who may employ any such Transferring Employee or Key Personnel from time to time) provided that this clause does not prevent the Seller or any Seller’s Group Company from recruiting any Transferring Employee or Key Personnel by means of a general advertising campaign.
13.14 Notwithstanding the provisions of clause 13.13, the Seller undertakes that as from Credit Card Completion it shall not use and shall procure that no another member of the Seller’s Group are the property of the Company and that after Completion the Company shall use have the right to examine, duplicate or repossess such books and records to the extent accessible by the Seller or other members of the Seller’s Group; provided that, to the extent any Personal Data contained such books and records contain information not relating to the Company, Seller may redact such information. Any such books and records, while in the possession of the Seller or derived from other members of the Signing Date Account List Seller’s Group shall be treated the same as information of the Seller, including being subject to the Seller and its Affiliates document retention policies; provided that Seller shall give thirty (30) days’ notice to the Purchaser prior to destroying any such books or Customer Data records to permit the Purchaser to examine, duplicate or repossess such books and Files in contravention of Data Protection Legislation without any limitation in timerecords.
13.15 If 9.3 The Parties hereby agree that the Company shall not be entitled to carry on business under the name “MBIA” or any confusingly similar name. Accordingly, the Purchaser hereby undertakes to the Seller enters into an Authorised Guarantee Agreement in connection with to procure that by no later than 180 days after Completion the assignment corporate name of the Property LeaseCompany is changed to a name which does not contain or refer to the acronym of “MBIA” and is not confusingly similar to the current name of the Company (the “New Name”).
9.4 The Purchaser hereby undertakes to the Seller to procure that by no later than 180 days after Completion the Company shall cease using the Trademarks in respect of the following materials: (i) business cards; (ii) invoices; (iii) receipts; (iv) forms; and (iv) product, training and service literature and materials, (together, the Purchasers will indemnify “Materials”).
9.5 The Purchaser hereby undertakes to the Seller from to procure that by no later than 90 days after Completion, the Company shall: (i) establish its own internet (wide area network) link for sending emails and against or accessing the internet; (ii) set up an email domain name without referencing “MBIA” or any derivation thereof; and all Losses which the Seller incurs (directly or indirectlyiii) in relation to the Authorised Guarantee Agreementset up its own email server (software).
13.16 The provisions of Schedule 15 9.6 Notwithstanding this Clause 9, the Purchaser shall apply be entitled to refer to “MBIA” in relation any document or notice it is required or permitted to Unenforceability Allegationssend or serve pursuant to any legally binding obligation, agreement, or court or legal proceeding provided, however, that any such document, notice, or court or legal proceeding shall specifically note the New Name each time “MBIA” is used.
Appears in 1 contract
Samples: Share Purchase Agreement (Mbia Inc)
