PRE-CLOSING SELLER UNDERTAKINGS. 4.1 From the date of this Agreement until Closing, subject to all applicable legal and regulatory requirements, the Seller shall (except as may be approved in writing by the Purchaser) ensure or procure, in each case, in so far as it is able as the sole shareholder of the Company, that the business of each Target Company is carried on only in the ordinary and usual course and the Seller shall comply with the obligations set out in Schedule 2.
PRE-CLOSING SELLER UNDERTAKINGS. 7.1 To the extent permissible under applicable competition/anti-trust laws and subject to Clause 7.2, from the date of this Agreement until Closing, the Seller shall:
(a) ensure that the business of each Target Company is carried on only in the ordinary course of business in all material respects consistent with past practice over the preceding 18 months and as a going concern;
(b) take all reasonable steps, and procure that each of the Target Companies takes all reasonable steps, to preserve and protect the assets of the Target Companies (including relationships with customers); and
(c) comply with the obligations set out in Schedule 2 (Conduct of the Target Companies Pre-Closing).
7.2 The Seller shall not be obliged to comply with Clause 7.1 to the extent that either:
(a) it has obtained the prior written consent of the Purchaser (not to be unreasonably withheld, delayed or conditioned); or
(b) compliance with any of the relevant requirements would cause a breach of any legal or regulatory requirement applicable to a Target Company, provided that in these circumstances the Seller shall have given the Purchaser (to the extent lawful and practicable in the circumstances) reasonable advance notice of its intention to undertake (or omit from undertaking) the relevant matter, together with reasonable details of the relevant legal or regulatory requirement.
7.3 The Seller shall use all reasonable endeavours to obtain, prior to Closing, the consent of each counterparty to any agreement entered into by any Target Company (other than the Material Commercial Arrangements and the Material Financial Arrangements to which the provisions of Clause 8.2(a) shall apply) which contains a change of control provision which would be triggered by the transactions contemplated by this Agreement.
PRE-CLOSING SELLER UNDERTAKINGS. From the date of this Agreement until Closing, the Seller shall (except as may be approved by the Purchaser) ensure that the Target Enterprise is carried on in all material respects only in the ordinary course and shall comply with the obligations set out in Schedule 5.
PRE-CLOSING SELLER UNDERTAKINGS. 4.1 Until Closing, the Seller shall (except as the Purchaser may approve in writing):
(a) ensure that each Company carries on its business only in the ordinary and usual course; and
(b) ensure that all reasonable steps are taken to preserve and protect the assets of each Company and to preserve and retain the goodwill of its business (including existing relationships with customers and suppliers).
PRE-CLOSING SELLER UNDERTAKINGS. 4.1 From the date of this Agreement until Closing, the Seller shall (except as may be approved by the Purchaser in writing and other than with respect to the Permitted Actions) ensure that the European Business is carried on in all material respects only in the ordinary course and shall comply with the obligations set out in Schedule 6.
4.2 The Seller shall procure that until Closing, the Purchaser and its advisers shall be given, as soon as is reasonably practicable following a request, reasonable access during Working Hours and subject to the reasonable security requirements of the Seller to:
(a) the Records except that the Seller shall not be obliged to grant access to any Records which, in the Seller’s opinion, are commercially sensitive or confidential to the activities of the Target Companies, the Business or the Seller Group (including any such Records as relating to the pricing of the products of the European Business), which are legally privileged or the disclosure of which are prevented or rendered unlawful by any applicable law, regulation or administrative practice;
(b) the Properties; and
(c) the Key Managers and/or such of the Employees as the Purchaser may reasonably request and on such terms as are agreed between the Seller and the Purchaser (both acting reasonably), in each case under the supervision of the Seller and with a representative of the Seller in attendance at all times and so as not to unreasonably disrupt the conduct of the European Business.
PRE-CLOSING SELLER UNDERTAKINGS. 4.1 From the date of this Deed until Closing, the Sellers shall (except as may be approved by the Purchaser (such agreement not to be unreasonably withheld or delayed, but having regard to the fact that the Purchaser is in commercial terms bearing the risk of adverse performance or events of the Target Entities with effect from the date of this Deed)) procure that, pending Closing (subject to clause 4.2), the business of each Target Entity is carried on in all material respects in the ordinary course and shall comply with the obligations set out in Schedule 7, provided that nothing in Schedule 7 shall prohibit or restrict the taking of any action described in clause 5.1 below or in Schedule 2.
4.2 Notwithstanding clause 4.1 above, from the date of this Deed until Closing, the Purchaser shall have the right to appoint Xxx XxXxxxx, Xxx Xxxxx, Xxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxx Xxxxxx (and any other individuals acceptable to the Sellers’ Representative (acting reasonably)) (the Purchaser Observer Team) who shall, subject to such restrictions as may reasonably be imposed by the Sellers’ Representative in order to comply with applicable regulatory and confidentiality obligations and conflicts of interest (including potential or actual business or other conflicts relating to the Proposed Transaction), have commercially reasonable access during normal business hours to the operations and personnel of the Target Entities, including the right to attend all material internal management meetings of any of the Target Entities and to participate in the preparation of the Audited Accounts (save that members of the Purchaser Observer Team shall only attend management meetings of the Target Entities that are consistent with management meetings that they attend within the Evercore Group). For the purposes of this clause 4.2, it shall be sufficient that any one member of the Purchaser Observer Team attends material management meetings as provided in this clause 4.2 at any time, notwithstanding the fact that more than one member of the Purchaser Observer Team may attend such meetings as the Purchaser Observer Team sees fit.
4.3 The Sellers and the Purchaser Observer Team shall use commercially reasonable efforts (which for the avoidance of doubt will include compliance with applicable regulatory and confidentiality obligations) to provide client and other information to each other to identify and manage actual and potential con...
PRE-CLOSING SELLER UNDERTAKINGS. To the extent permissible under applicable law, from the date of this Agreement until Closing, the Seller shall (except as may be approved in writing by the Purchaser) ensure that the business of the Company is carried on in all material respects only in the ordinary course of business and shall comply with the obligations set out in Schedule 4. For the avoidance of doubt, the Purchaser accepts the creation of the Excluded Inter-Company Debt and Day-to-day Inter-Company Debt Balances.
PRE-CLOSING SELLER UNDERTAKINGS. 4.1 From the date of this Agreement until Closing, the Sellers shall (except as may be approved by the Purchaser) ensure that the business of the Company is carried on in all material respects only in the ordinary course and shall comply with the obligations set out in Schedule 4.
4.2 Promptly after the date of this Agreement, the Purchaser shall apply to the UK Financial Services Authority for any necessary consents and approvals in relation to the change of control of the Company as a result of the transactions contemplated by this Agreement and shall use its best endeavours to obtain such consents and approvals (provided that the Purchaser shall not be obliged to dispose of any business or to agree or accept any restriction on the operations of the Purchaser’s Group (including the Company) after Closing, other than restrictions contained in the authorisation granted to the Company by the UK Financial Services Authority prior to the date of this Agreement or which are customary in respect of such consents and approvals and not unduly onerous) and each of the Sellers shall, and shall procure that the Company shall, use their respective best endeavours and take all reasonable steps to assist the Purchaser to obtain such consents and approvals.
4.3 Prior to the Closing, the Sellers shall cause the Company to elect on Form 8832, under U.S. law, in such form as is provided by the Purchaser to the Sellers not later than 30 Business Days prior to Closing, to classify the Company as a partnership for U.S. Tax purposes effective prior to the Closing Date and shall deliver to the Purchaser a copy of the executed Form 8832.
4.4 The Sellers or the Company shall provide FIRPTA certificates, in such form as is provided by the Purchaser to the Sellers not later than 10 Business Days prior to Closing, as required by Section 1445 of the Code and the regulations promulgated thereunder acceptable to the Purchaser indicating that no withholding is required under Section 1445 of the Code in connection with the sale and purchase.
PRE-CLOSING SELLER UNDERTAKINGS. 4.1 Subject to clause 4.2, to the extent permissible under applicable Law, during the Pre-Closing Period, the Seller shall (except as may be approved by the Purchaser), ensure that the business of each Target Company is carried on in compliance with the obligations set out in Schedule 3 and in all material respects only in the ordinary course of business.
4.2 The provisions of clause 4.1 and Schedule 3 shall not prevent or prohibit the Seller or any Target Company from carrying out or undertaking any of the following matters:
(a) complying with, or otherwise carrying out any action expressly permitted by the terms of, any Transaction Document, including the payment of any Permitted Leakage;
(b) any matter as may be approved in writing by the Purchaser, such approval not to be unreasonably withheld or delayed, or at the Purchaser’s written request (including providing information to any regulatory body or government agency);
(c) acquiring any non-performing loan portfolio in the ordinary course of business of the Target Companies, provided that the acquisition price in respect of any individual non-performing loan portfolio does not exceed US$20,000,000 in any one instance and the aggregate price of all such acquired non-performing loan portfolios does not exceed US$100,000,000 (a Permitted Portfolio Acquisition);
(d) increasing the amount drawn under the Existing Financing Agreement up to a maximum aggregate amount of two billion NOK in connection with making any Permitted Portfolio Acquisition;
(e) Aktiv Kapital Investment AS making any investments provided that the aggregate value of all investments shall not exceed US$18,500,000; and
(f) the Subsidiary Rationalisation Process.
PRE-CLOSING SELLER UNDERTAKINGS. 4.1 From the date of this Agreement until Closing, the Seller shall ensure that the business of each Target Company is carried on in all material respects only in the ordinary course and shall comply with the obligations set out in Schedule 4.
4.2 The Seller shall, subject to the Purchaser complying at all times with its obligations pursuant to clause 16, and shall procure that the officers and employees of and the professional advisers to the Target Companies shall, between the date of this Agreement and Closing, at the request of the Purchaser and subject to being given reasonable prior written notice give the Purchaser and any person authorised by it such access as is in the Seller’s opinion reasonable to the statutory books, board minutes, monthly management accounts and tax records of the Target Companies at reasonable times during business hours.
