Common use of PRE-CLOSING UNDERTAKINGS Clause in Contracts

PRE-CLOSING UNDERTAKINGS. 6.1 From 31 January 2015 until Closing, each Seller shall (unless otherwise required or permitted by the terms of any Transaction Document), by applicable Law, or by any Governmental Entity or as part of the Carve-outs or Add-ons or in connection with the implementation of the Merger or as Fairly Disclosed in folders 5.1.24, 10.3.2 and 10.3.3 of the “Global” exchange of Data Room or as may be approved by the Foreign Purchaser (who shall be entitled to act for the Purchasers for such purpose), such approval not to be unreasonably withheld or delayed) ensure (so far as it is able) that the business of the Group Companies in which it owns an interest is carried on in all material respects only in the ordinary course of business and that: (a) subject to clause 21 and to applicable Law, the Purchasers’ representatives shall be allowed such access as is reasonably requested, upon reasonable notice and at reasonable times, locations and intervals, to (i) the books and records of such Group Companies (including all statutory and minute books) and (ii) the premises used by, and management of, such Group Companies; (b) no such Group Company declares or pays any dividend or other distribution (whether in cash, stock or in kind) or reduces its paid-up share capital, save to another Group Company; (c) no such Group Company issues or agrees to issue or allots any share capital (except to another Group Company); (d) no such Group Company modifies its by-laws or other equivalent organisational document; (e) no such Group Companies makes any change in the accounting methods or practices other than in the ordinary course of business (other than such changes required by applicable local accounting principles); (f) all transactions between any such Group Company and any member of its Seller Group (other than another Group Company) take place (i) pursuant to the terms of existing agreements between Group Companies and such member of its Seller Group as disclosed in the Data Room, or (ii) in a manner and on terms consistent with previous practice in the 12 months prior to 31 January 2015; (g) no such Group Company sells or acquires, or agrees to sell or acquire, any business that is material to it; (h) no such Group Company: (i) employs or agrees to employ any new persons, full or part time, in a Senior Manager capacity (other than to fill a vacancy) or (ii) make changes (other than those required by Law) in terms of employment (including pension fund commitments) in each case in circumstances which increases in aggregate the level of staff costs of all its Group Companies by more than [***] per cent. per annum; (i) no such Group Company incurs capital expenditure in a total aggregate amount in excess of [***] per cent. of the total aggregate amount of capital expenditure for the relevant period set forth in the relevant Group Company’s budget; (j) no such Group Company creates any Encumbrance over the Subject Shares or the shares or assets of any of its Group Companies other than a Permitted Encumbrance; (k) no Group Company which, individually or with its respective Affiliates, generated more than [***] of that Seller’s [***] ceases or proposes to cease to carry on its business or be wound up or enter into receivership, or any form of management or administration over its assets; (l) no such Group Company permits any of its insurances to lapse or do anything which would make any policy of insurance void, null or voidable; (m) no such Group Company enters into or gives or permits or suffers to subsist any guarantee of or indemnity or contract of suretyship for or otherwise commits itself in respect of the due payment of money or the performance of any contract, engagement or obligation of any other person or body which if called upon or otherwise exercised by the relevant counterparty would result in a cost to the Group Companies of [***] or more; (n) in relation to any Material Real Estate of its Group Companies, no such Group Company terminates, or gives a notice to terminate, a lease tenancy or licence; (o) no such Group Company enters into any partnership or joint venture involving or being likely to involve expenditure by its Seller Group in excess of [***] per annum; (p) no such Group Company makes any material amendment to any existing collective bargaining agreement; (q) each such Group Company maintains in all material respects the standards of production that applied to its products in the six months up to 31 January 2015; (r) no such Group Company settles or compromises any claim or disputes or waives a right in relation to litigation or arbitration proceedings (in each case, save in respect of the collection of debts arising in the ordinary course of business) which could reasonably be expected to result in a payment to or by a Group Company of [***] or more; (s) no Group Company shall, and the Sellers shall procure that no Group Company shall, re-file or amend any Tax Return without the express written consent of the Purchasers, except where such re-filing or amendment (i) can reasonably be expected to result in a payment to or by all Group Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or less or (ii) is required to take into account the consequences of a Tax audit or reassessment or fix an omission or error; and (t) no Group Company shall, and the Sellers shall procure that no Group Company shall, amend any policy in respect of Tax except where such amendment is required by applicable Law or to take into account the consequences of a Tax audit or reassessment in effect on or before Closing, in which case, and where such amending of policy in respect of Tax can reasonably be expected to result in a payment to or by all Group Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or more, the Group Company shall notify the Purchasers before making and applying any such amendment. 6.2 The Foreign Purchaser (acting on behalf of the Purchasers) shall not exercise any of its rights pursuant to this clause 6 (including the right to refuse to approve any particular transaction or action) in such a manner as could disrupt unreasonably the efficient operations of the Group Companies. 6.3 Subject to applicable Law, each Seller shall use its reasonable endeavours to assist, and shall procure that each of its Group Companies shall use its reasonable endeavours to assist, the Purchasers to prepare for a smooth transition of the Group Companies to each of their respective Purchaser Groups. 6.4 To the extent that any Group Company has entered into any agreement which contains a clause pursuant to which the counterparty may exercise a right as a result of the Proposed Transactions the consequences of which are adverse to the relevant Group Company, the relevant Sellers and the Purchasers shall cooperate with each other, to ensure that, at the Purchasers’ cost, appropriate steps are taken before Closing to inform such counterparty of the Proposed Transactions and to seek a waiver of the counterparty’s relevant right.

PRE-CLOSING UNDERTAKINGS. 6.1 4.1 From 31 January 2015 the date of this Agreement until Closing, each Closing the Seller shall (unless otherwise required or permitted by the terms of any Transaction Document), by applicable Law, or by any Governmental Entity or as part of the Carve-outs or Add-ons or in connection with the implementation of the Merger or as Fairly Disclosed in folders 5.1.24, 10.3.2 and 10.3.3 of the “Global” exchange of Data Room or except as may be approved by the Foreign Purchaser (who shall be entitled to act for the Purchasers for such purpose), such approval not to be unreasonably withheld or delayedPurchaser) ensure (so far as it is able) that the business of the Group Companies in which it owns an interest Target Business is carried on on, in all material respects respects, only in the ordinary course course, in substantially the same manner as previously conducted. In addition, from the date of business and that: (a) subject to clause 21 and to applicable Lawthis Agreement until Closing, the Purchasers’ representatives Seller shall comply with the obligations set out in Schedule 7. 4.2 The Seller and the Purchaser agree that they will establish a protocol governing the Purchaser’s receipt of and access to information in the period between the date of this Agreement and the obtaining of applicable merger control clearance in each relevant country with a view to ensuring that such behaviour does not contravene any order, law, rule or regulation governing the extent to which the Purchaser may have access to information concerning any Target Business. The Seller and the Purchaser agree that no term of this Agreement shall be allowed such construed so as to require the contravention of any order, law, rule or regulation governing the extent to which the Purchaser may have access as is reasonably requested, upon reasonable notice and at reasonable times, locations and intervals, to (i) the books and records of such Group Companies (including all statutory and minute books) and (ii) the premises used by, and management of, such Group Companies; (b) no such Group Company declares or pays information concerning any dividend or other distribution (whether in cash, stock or in kind) or reduces its paid-up share capital, save to another Group Company; (c) no such Group Company issues or agrees to issue or allots any share capital (except to another Group Company); (d) no such Group Company modifies its by-laws or other equivalent organisational document; (e) no such Group Companies makes any change Target Business in the accounting methods or practices other than period between the signing of this Agreement and the obtaining of applicable merger control clearance in each relevant country. 4.3 In no event shall Schedule 7 be construed to permit the ordinary course Purchaser to direct the affairs of business (other than such changes required by applicable local accounting principles); (f) all transactions between any such Group Company and any member of its Seller Group (other than another Group Company) take place (i) pursuant to the terms of existing agreements between Group Companies and such member of its Seller Group as disclosed in the Data Room, or (ii) in a manner and on terms consistent with previous practice in the 12 months Target Business prior to 31 January 2015; (g) no such Group Company sells or acquires, or agrees to sell or acquire, any business that is material to it; (h) no such Group Company: (i) employs or agrees to employ any new persons, full or part time, in a Senior Manager capacity (other than to fill a vacancy) or (ii) make changes (other than those required by Law) in terms of employment (including pension fund commitments) in each case in circumstances which increases in aggregate the level of staff costs of all its Group Companies by more than [***] per cent. per annum; (i) no such Group Company incurs capital expenditure in a total aggregate amount in excess of [***] per cent. of the total aggregate amount of capital expenditure for the relevant period set forth in the relevant Group Company’s budget; (j) no such Group Company creates any Encumbrance over the Subject Shares or the shares or assets of any of its Group Companies other than a Permitted Encumbrance; (k) no Group Company which, individually or with its respective Affiliates, generated more than [***] of that Seller’s [***] ceases or proposes to cease to carry on its business or be wound up or enter into receivership, or any form of management or administration over its assets; (l) no such Group Company permits any of its insurances to lapse or do anything which would make any policy of insurance void, null or voidable; (m) no such Group Company enters into or gives or permits or suffers to subsist any guarantee of or indemnity or contract of suretyship for or otherwise commits itself Closing in respect of such Target Business. 4.4 From the due payment date of money or this Agreement to Closing upon reasonable prior written notice, the performance of any contractSeller, engagement or obligation of any other person or body which if called upon or otherwise exercised by the relevant counterparty would result in a cost to Target Companies and the Group Companies of [***] or more; Business Sellers (n) in relation to any Material Real Estate the Businesses) shall, and shall each cause its subsidiaries, officers, directors, employees and representatives to, afford the officers, employees and those of its Group Companies, no such Group Company terminates, the representatives of the Purchaser who have a bona-fide reason to access information belonging to the Target Companies or gives a notice to terminate, a lease tenancy or licence; the Business Sellers (o) no such Group Company enters into any partnership or joint venture involving or being likely to involve expenditure by its Seller Group in excess of [***] per annum; (p) no such Group Company makes any material amendment to any existing collective bargaining agreement; (q) each such Group Company maintains in all material respects the standards of production that applied to its products in the six months up to 31 January 2015; (r) no such Group Company settles or compromises any claim or disputes or waives a right in relation to litigation or arbitration proceedings the Businesses) (e.g., (without limitation) to obtain information in each casefurtherance of permissible pre-closing integration planning) reasonable access, save in respect of the collection of debts arising in the ordinary course of business) which could reasonably be expected consistent with applicable law, at all reasonable times to result in a payment to or by a Group Company of [***] or more; (s) no Group Company shallits officers, employees, representatives, properties, offices, and the Sellers shall procure that no Group Company shall, re-file or amend any Tax Return without the express written consent of the Purchasers, except where such re-filing or amendment (i) can reasonably be expected other facilities and to result in a payment to or by all Group Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or less or (ii) is required to take into account the consequences of a Tax audit or reassessment or fix an omission or error; and (t) no Group Company shallbooks and records, and shall furnish the Sellers shall procure that no Group Company shallPurchaser with all financial, amend any policy operating and other data and information as the Purchaser, through its officers, employees or representatives, may from time to time reasonably request in respect of Tax except where such amendment is required writing. Notwithstanding the foregoing and save as expressly contemplated by applicable Law or to take into account the consequences of a Tax audit or reassessment in effect on or before Closing, in which case, and where such amending of policy in respect of Tax can reasonably be expected to result in a payment to or by all Group Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or more, the Group Company shall notify the Purchasers before making and applying any such amendment. 6.2 The Foreign Purchaser (acting on behalf of the Purchasers) shall not exercise any of its rights parties pursuant to this clause 6 (including Agreement, for example to prepare divesture arrangements which the right Purchaser reasonably considers appropriate in order to refuse enable it to approve satisfy the Conditions, any particular transaction such investigation or action) consultation shall be conducted in such a manner as could disrupt not to interfere unreasonably with the efficient business or operations of the Group Companies. 6.3 Subject Target Business or otherwise result in any significant interference with the prompt and timely discharge by such employees of their normal duties. Neither the Seller nor the Target Companies nor the Business Sellers shall be required to applicable Law, each Seller shall use its reasonable endeavours provide access to assist, and shall procure that each of its Group Companies shall use its reasonable endeavours or to assist, disclose information where such access or disclosure would jeopardize the Purchasers to prepare for a smooth transition attorney-client privilege of the Group Target Companies to each of their respective Purchaser Groups. 6.4 To or the extent that Business Sellers or contravene any Group Company has law, rule, regulation, order, judgment, decree or binding agreement entered into any agreement which contains a clause pursuant to which the counterparty may exercise a right as a result of the Proposed Transactions the consequences of which are adverse prior to the relevant Group Company, the relevant Sellers and the Purchasers shall cooperate with each other, date of this Agreement. All disclosed information will be subject to ensure that, at the Purchasers’ cost, appropriate steps are taken before Closing to inform such counterparty Clause 31 (Confidentiality) of the Proposed Transactions and to seek a waiver of the counterparty’s relevant rightthis Agreement.

PRE-CLOSING UNDERTAKINGS. 6.1 From 31 January 2015 3.1 Subject to clause 3.2, the Seller undertakes to the Purchaser, to exercise its votes as shareholder in the Company and as an indirect shareholder in PICP1 or otherwise and in so far as it is lawfully able, from the date of this Agreement until Closing, each Seller the earlier of Closing or termination of this Agreement: (a) to use its reasonable endeavours to procure that no Target Company shall (unless otherwise required undertake any act or permitted by course of conduct which is outside the terms ordinary course of any Transaction Document), by applicable Law, or by any Governmental Entity or as part business of such Target Company without the prior written consent of the Carve-outs or Add-ons or in connection with the implementation of the Merger or as Fairly Disclosed in folders 5.1.24, 10.3.2 and 10.3.3 of the “Global” exchange of Data Room or as may be approved by the Foreign Purchaser (who shall be entitled to act for the Purchasers for such purpose), such approval consent not to be unreasonably withheld or delayed); (b) ensure (so far to use its reasonable endeavours to procure that each Target Company shall maintain in force all insurance policies that such Target Company maintains as it is able) that at the business date of the Group Companies in which it owns an interest is carried on this Agreement, in all material respects only on substantially the same terms and at similar levels of cover as prevail at the date of this Agreement; (c) to use its reasonable endeavours to procure that no Target Company shall undertake any acts or matters specified in Schedule 6 without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed), provided that the Purchaser shall be deemed to have consented to the relevant act or matter if it fails to notify the Seller within three Business Days of the relevant request that it does not consent to the relevant act or matter; (d) subject to clause 3.3, to procure that each relevant Target Company shall, at the sole expense of the Purchaser, use all reasonable endeavours to comply with all reasonable requests from the Purchaser’s Group in connection with the Purchaser’s Financing, including: (i) furnishing the Purchaser and its Financing Sources as promptly as practicable with financial and other pertinent information regarding the Company and other Target Companies as may be reasonably requested by the Purchaser, including, without limitation, financial statements (including financial statements of the Target Companies and pro forma financial information solely relating to the Target Companies and their subsidiaries but excluding any pro forma financial information relating to the Purchaser or its Affiliates (including any post-closing pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any pro forma financial information) and audit reports and other information of the type required and of a type and form customarily included in a registration statement by a U.S. company on Form S-1 for a public offering of equity or debt securities as contemplated by the Purchaser’s Financing (collectively, the Required Target Financial Information)); (ii) assisting with the preparation of any customary offering documents or memoranda, bank information memoranda, prospectuses and similar documents and materials for rating agency presentations and similar documents required in connection with the Purchaser’s Financing; (iii) delivering (or causing its accountants to deliver) accountants’ comfort letters and consents of accountants for use of their reports in any materials relating to the Purchaser’s Financing and in connection with any filings required to be made by the Purchaser pursuant to the Securities Act or the U.S. Securities Exchange Act of 1934, as amended (collectively, an SEC Filing), where the financial statements is included or incorporated by reference) or, if the Purchaser’s Financing has not occurred and/or the Purchaser has not yet filed the financial statements in an SEC Filing, the accountants will on the Closing Date deliver a consent to a draft Form 8-K containing such financial statements provided by Purchaser and a draft comfort letter it is prepared to issue at such time; (iv) cooperating reasonably with (i) the marketing efforts for the Purchaser’s Financing and (ii) the Financing Sources’ due diligence, in each case to the extent customary and reasonable; and (v) assisting, and using reasonable efforts to procure that the Management Employees assist, with the preparation of documents and materials reasonably required by the Purchaser and the Financing Sources; and (e) subject to clause 3.3, to use all reasonable endeavours to procure that each relevant Target Company shall, at the sole expense of the Purchaser, comply with all reasonable requests from the Purchaser’s Group to provide customary authorisation letters to the Financing Sources authorising the distribution of information relating to the Target Companies to prospective lenders or investors. 3.2 Nothing in clause 3.1 shall restrict any act or omission of any Target Company: (i) required or permitted by this Agreement or any of the other Transaction Documents; (ii) required to implement or in connection with the Capitalisation or otherwise required to give effect to the Capitalisation Deed (including the adoption of the PICP1 Articles and the allotment and issue of the Capitalisation Shares); (iii) which is necessary, in the Seller’s reasonable opinion, in order to comply with applicable law or regulation; or (iv) which is in the ordinary course of business of the relevant Target Company or Target Companies consistent with past practice. Further, nothing in clause 3.1 shall restrict any Target Company from: (i) paying any Transaction-related cash bonuses to any Employees on or before Closing; (ii) exercising any call option and transfer rights in respect of any A ordinary shares and B ordinary shares in Partnerships in Care Investments 2 Limited (PICI2) in accordance with the articles of association of PICI2; or (iii) paying to any Cinven Party or any of their Affiliates (or any other person as they may nominate): (A) any accrued monitoring fees owed to any Cinven Party or any of their Affiliates or to the RBS Seller or any of its Affiliates (in each case plus any VAT in respect of such fees); or (B) any amounts in relation to the Target Companies’ obligations under the CRC Energy Efficiency Scheme in the UK (as established by the CRC Energy Efficiency Scheme Order 2010 (as amended)). 3.3 Notwithstanding anything in clauses 3.1(d) or 3.1(e) to the contrary, nothing therein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of any of the Target Companies, and none of the Target Companies shall be required to (other than with respect to clause 3.1(d)(iii)), enter into or approve any financing or purchase agreements for the Purchaser’s Financing, take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Purchaser’s Financing or any of the matters in clauses 3.1(d) or 3.1(e), prior to Closing, unless such action is contingent on Closing. 3.4 The Purchaser shall indemnify and hold harmless the Seller and the Target Companies from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Purchaser’s Financing (including any action taken in accordance with clauses 3.1(d) or 3.1(e) and any information (other than information furnished by or on behalf of any Target Company) utilized in connection therewith in each case prior to the Closing Date, except to the extent that such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties arise out of or in connection with the gross negligence, wilful misconduct or fraud by a Target Company or the Seller or any of its or their Affiliates. 3.5 Each of the Seller and the RBS Seller shall procure that, in the period between the date of this Agreement and Closing, the Purchaser and any member of the Purchaser’s Group and, in each case, its directors and advisers, shall be given reasonable access (during normal business hours and upon reasonable notice and so as to minimise any disruption caused to the business activities being carried on by the Target Companies) to the senior personnel, books, records, correspondence and databases of each Target Company including, without limitation, allowing the Purchaser and any member of the Purchaser’s Group and, in each case, its officers, directors and advisers access to such senior personnel, books, records, correspondence and databases in each case for the sole purpose of facilitating and implementing preparations for Closing, including, without limitation, for the purpose of the purchase by the Purchaser of warranty and indemnity insurance it may take out in connection with the Proposed Transaction, and the smooth handover and operation of the Target Companies on Closing. 3.6 The Purchaser undertakes not to agree to change, amend or otherwise modify or terminate any of the Commitment Agreements or to the waiver of any rights thereunder in either case if and to the extent that would cause a breach of the warranties of the Purchaser set out in Schedule 5 or that could materially prejudice the ability of the Purchaser to pay the Estimated Price, the Share Price and the Discharge Amount without the prior written consent of the Seller and the RBS Seller. The Purchaser shall, and shall cause its subsidiaries to, take all reasonable endeavours to: (i) fully satisfy in all material respects, on a timely basis, all conditions set forth in the Commitment Agreements; (ii) comply with its obligations under the Commitment Agreements; (iii) enter into definitive agreements with respect to the Purchaser’s Financing on the terms and conditions specified in the Commitment Agreements so that such agreements are in effect as promptly as practicable but in any event no later than Closing; (iv) enforce its rights under the Commitment Agreements; and (v) upon satisfaction or waiver of the conditions set forth in the Commitment Agreements, cause the Financing Sources committing to fund the Purchaser’s Financing to fund the Purchaser’s Financing at Closing. If at any time prior to Closing, the Commitment Agreements shall expire or terminate for any reason or the other party to such Commitment Agreements notifies the Purchaser in writing that the party no longer intends to provide the portion of the financing covered by any such Commitment Agreement and such portion is reasonably required to fund the amounts contemplated to be paid by the Purchaser pursuant to this Agreement, (A) the Purchaser shall notify the Company within one Business Day and (B) the Purchaser shall use reasonable best efforts to arrange alternative financing, including from alternative sources. The Purchaser shall provide to the Seller and the RBS Seller copies of the commitment letter, executed by the Purchaser Guarantor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Bank of America, N.A., a redacted copy of the fee letter among the Purchaser Guarantor, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Bank of America, N.A., and all definitive documents relating to the Purchaser’s Financing and shall use all reasonable endeavours to respond accurately and in good faith to the Seller’s and the RBS Seller’s reasonable inquiries with respect to all material activity concerning the status or attainment of the financing contemplated by the Commitment Agreements; provided that any such responses shall be subject to any customary confidentiality obligations. The Purchaser shall keep the Seller and the RBS Seller fully informed of material developments in respect of the financing process relating thereto. Without limiting the generality of the foregoing, the Purchaser shall give the Seller and the RBS Seller prompt notice of: (i) any breach or default by any party to any Commitment Agreements or definitive document related to the Purchaser’s Financing of which the Purchaser becomes aware; and (ii) the receipt of any written notice or other written communication from any Financing Source with respect to any: (a) breach, default, termination or repudiation by any party to any Commitment Agreements or any definitive document relating to the Purchaser’s Financing of any provision of the Commitment Agreements or definitive document relating to the Financing; or (b) material dispute or disagreement between or among any parties to any Commitment Agreements or any definitive documents related to the Financing; provided that the Purchaser shall not be under any obligation to disclose information that is subject to attorney client or similar privilege or subject to customary confidentiality obligations. 3.7 As soon as reasonably practicable, but in any event within one Business Day of the date the Seller or the RBS Seller delivers to the Purchaser a written request, the Purchaser shall provide any information reasonably requested by the Seller or the RBS Seller relating to any circumstances referred to in clause (i) and (ii) of the immediately preceding sentence. 3.8 The Seller hereby consents to the reasonable use of the logos of the Company and any of the other Target Companies in connection with the Purchaser’s Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Target Companies or the reputation or goodwill of the Target Companies or any of their logos and on such other terms and conditions as the Company shall reasonably impose. 3.9 The Seller undertakes that it shall, and it shall procure that PICL shall, prior to Closing, cooperate with the Purchaser and assist with any notification to the Velindre NHS Trust and the National Schizophrenia Fellowship (operating under the registered charity Rethink) of the change of control of the Target Companies which will occur as a result of the Proposed Transaction. 3.10 The RBS Seller undertakes to the Purchaser not to grant its consent to any Target Company to do, or to omit to do, any act or matter which would constitute a breach by the Seller of its obligations under clauses 3.1 (a) to 3.1(c) (inclusive) from the date of this Agreement until the earlier of Closing or termination of this Agreement, insofar as the RBS Seller has a right of consent under any shareholder or similar agreement to which the RBS Seller and any member of the Seller Group may be party. 3.11 On or before Closing, the Seller shall notify the Purchaser (and provide the Purchaser with reasonable details of the relevant facts or circumstances) if any of the Trading Warranties would be untrue as at Closing by reference to the facts and circumstances then existing and with any references to the date of this Agreement being substituted by references to the Closing Date, were any of the Trading Warranties to be repeated at Closing. For the avoidance of doubt, none of the Trading Warranties shall be deemed to be repeated at Closing for the purposes of this Agreement. 3.12 The Seller undertakes to the Purchaser and the RBS Seller that it shall, on or before 10 June 2014, deliver to the RBS Seller (or ensure that there is delivered) all those documents and items respectively listed in relation to the Seller or any of its Affiliates (as the case may be) in Part A of Schedule 7, to be held by the RBS Seller pending Closing; provided that: (a) subject in relation to clause 21 and to applicable Lawthe documents listed at paragraphs (e), the Purchasers’ representatives shall be allowed such access as is reasonably requested(h), upon reasonable notice and at reasonable times, locations and intervals, to (i) the books and records of such Group Companies (including all statutory and minute booksn) and (iiq) of Part A of Schedule 7, the premises used by, Seller shall only be required to deliver the final drafts and management of, such Group Companiesnot executed but undated copies on 10 June 2014; (b) in relation to the documents listed at paragraphs (c), (f) and (g) of Part A of Schedule 7, the Seller shall only be required to deliver executed but undated copies on 10 June 2014 to the extent the Purchaser has notified the Seller in writing of the relevant director resignations and appointments by no such Group Company declares or pays any dividend or other distribution (whether in cash, stock or in kind) or reduces its paid-up share capital, save to another Group Company;later than 6 June 2014; and (c) no such Group Company issues or agrees to issue or allots any share capital (except to another Group Company); (d) no such Group Company modifies its by-laws or other equivalent organisational document; (e) no such Group Companies makes any change in the accounting methods or practices other than in the ordinary course provisions of business (other than such changes required by applicable local accounting principles); (f) all transactions between any such Group Company and any member of its Seller Group (other than another Group Company) take place (i) pursuant this clause 3.12 shall not apply to the terms of existing agreements between Group Companies and such member of its Seller Group as disclosed in the Data Room, or (ii) in a manner and on terms consistent with previous practice in the 12 months prior to 31 January 2015; (g) no such Group Company sells or acquires, or agrees to sell or acquire, any business that is material to it; (h) no such Group Company: (i) employs or agrees to employ any new persons, full or part time, in a Senior Manager capacity (other than to fill a vacancy) or (ii) make changes (other than those required by Law) in terms of employment (including pension fund commitments) in each case in circumstances which increases in aggregate the level of staff costs of all its Group Companies by more than [***] per cent. per annum; (i) no such Group Company incurs capital expenditure in a total aggregate amount in excess of [***] per cent. of the total aggregate amount of capital expenditure for the relevant period set forth in the relevant Group Company’s budget; (j) no such Group Company creates any Encumbrance over the Subject Shares or the shares or assets of any of its Group Companies other than a Permitted Encumbrance; (k) no Group Company which, individually or with its respective Affiliates, generated more than [***] of that Seller’s [***] ceases or proposes to cease to carry on its business or be wound up or enter into receivership, or any form of management or administration over its assets; document listed at paragraph (l) no such Group Company permits any of its insurances to lapse or do anything which would make any policy Part A of insurance void, null or voidable; (m) no such Group Company enters into or gives or permits or suffers to subsist any guarantee of or indemnity or contract of suretyship for or otherwise commits itself in respect of the due payment of money or the performance of any contract, engagement or obligation of any other person or body which if called upon or otherwise exercised by the relevant counterparty would result in a cost to the Group Companies of [***] or more; (n) in relation to any Material Real Estate of its Group Companies, no such Group Company terminates, or gives a notice to terminate, a lease tenancy or licence; (o) no such Group Company enters into any partnership or joint venture involving or being likely to involve expenditure by its Seller Group in excess of [***] per annum; (p) no such Group Company makes any material amendment to any existing collective bargaining agreement; (q) each such Group Company maintains in all material respects the standards of production that applied to its products in the six months up to 31 January 2015; (r) no such Group Company settles or compromises any claim or disputes or waives a right in relation to litigation or arbitration proceedings (in each case, save in respect of the collection of debts arising in the ordinary course of business) which could reasonably be expected to result in a payment to or by a Group Company of [***] or more; (s) no Group Company shall, and the Sellers shall procure that no Group Company shall, re-file or amend any Tax Return without the express written consent of the Purchasers, except where such re-filing or amendment (i) can reasonably be expected to result in a payment to or by all Group Companies (taken in aggregate only Schedule 7 to the extent that similar matters are concerned) of [***] or less or (ii) it is required to take into account the consequences of a Tax audit or reassessment or fix an omission or error; and (t) no Group Company shall, and the Sellers shall procure that no Group Company shall, amend any policy in respect of Tax except where such amendment is required by applicable Law or to take into account the consequences of a Tax audit or reassessment in effect on or executed before Closing, in which case, and where such amending of policy in respect of Tax can reasonably be expected to result in a payment to or by all Group Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or more, the Group Company shall notify the Purchasers before making and applying any such amendment10 June 2014. 6.2 The Foreign Purchaser (acting on behalf of the Purchasers) shall not exercise any of its rights pursuant to this clause 6 (including the right to refuse to approve any particular transaction or action) in such a manner as could disrupt unreasonably the efficient operations of the Group Companies. 6.3 Subject to applicable Law, each Seller shall use its reasonable endeavours to assist, and shall procure that each of its Group Companies shall use its reasonable endeavours to assist, the Purchasers to prepare for a smooth transition of the Group Companies to each of their respective Purchaser Groups. 6.4 To the extent that any Group Company has entered into any agreement which contains a clause pursuant to which the counterparty may exercise a right as a result of the Proposed Transactions the consequences of which are adverse to the relevant Group Company, the relevant Sellers and the Purchasers shall cooperate with each other, to ensure that, at the Purchasers’ cost, appropriate steps are taken before Closing to inform such counterparty of the Proposed Transactions and to seek a waiver of the counterparty’s relevant right.

PRE-CLOSING UNDERTAKINGS. 6.1 From 31 January 2015 the date of the Binding Offer Letter until Closing, each Seller shall (unless otherwise required or permitted by the terms of any Transaction Document), by applicable Law, or by any Governmental Entity or as part of the Carve-outs any Local Reorganisation or Add-ons in accordance with any Local Steps Plan, or in connection with the implementation of the Merger or as Fairly Disclosed fairly disclosed in folders documents 5.1.24, 10.3.2 and 10.3.3 of in the “Global” exchange of the Data Room or as may be approved by the Foreign Purchaser (who shall be entitled to act for and the Purchasers for such purpose)other Seller, such approval not to be unreasonably withheld or delayed) ensure (in respect of any of its Non-Wholly-Owned Target Companies, only so far as it is able, taking into account any restrictions in any joint venture or shareholders’ agreements or other similar documents) that the business of the Group its Target Companies in which it owns an interest is carried on in all material respects only in the ordinary course of business and that: (a) subject to clause 21 23 and to applicable Law, the Purchasers’ Purchaser’s representatives shall be allowed such access as is reasonably requested, upon reasonable notice and at reasonable times, locations and intervals, to (i) the books and records of such Group each of its Target Companies (including all statutory and minute books) and (ii) the premises used by, and management of, such Group each of its Target Companies; (b) no such Group Company none of its Target Companies declares or pays any dividend or other distribution (whether in cash, stock or in kind) or reduces its paid-up share capital, save to another Group Target Company; (c) no such Group Company none of its Target Companies issues or agrees to issue or allots any share capital (except to another Group Companyof its Target Companies); (d) no such Group Company none of its Target Companies modifies its by-laws or other equivalent organisational document; (e) no such Group none of its Target Companies makes any change in the accounting methods or practices other than in the ordinary course of business (other than such changes required by applicable local accounting principles); (f) all transactions between any such Group Company of its Target Companies and any member of its Seller Group (other than another Group Target Company) take place (i) pursuant to the terms of existing agreements between Group Target Companies and such member of its Seller Group as disclosed in the Data Room, or (ii) in a manner and on terms consistent with previous practice in the 12 months prior to 31 January 2015the date of the Binding Offer Letter; (g) no such Group Company none of its Target Companies sells or acquires, or agrees to sell or acquire, any business that is material to itits Target Sub-Group and, with respect to the FTC Assets only, the Designated Seller does not sell, transfer, or relocate or agree to sell, transfer or relocate, any related asset or business that is material to (i) the Business (as defined in the US APA) with respect to the Holcim US Assets only, or (ii) the relevant Target Sub-Group with respect the other FTC Assets; (h) no such Group Companynone of its Target Companies: (i) employs or agrees to employ any new persons, full or part time, in a Senior Manager capacity (other than to fill a vacancy) or (ii) make changes (other than those required by Law) in terms of employment (including pension fund commitments) in each case in circumstances which increases in aggregate the level of staff costs of all its Group Target Companies by more than [***] per cent. per annum; (i) no such Group Company none of its Target Companies incurs capital expenditure in a total aggregate amount in excess of [***] per cent. of the total aggregate amount of capital expenditure for the relevant period set forth in the relevant Group Target Company’s budget; (j) no such Group Company none of its Target Companies creates any Encumbrance over the Subject Shares Shares, the Non-Controlling Interests or the shares or assets of any of its Group Target Companies other than a Permitted Encumbrance; (k) no Group Company none of those of its Target Companies which, individually or with its their respective Affiliates, generated more than [***] of that Seller’s [***] ceases or proposes to cease to carry on its business or be wound up or enter into receivership, or any form of management or administration over its assets; (l) no such Group Company none of its Target Companies permits any of its insurances to lapse or do anything which would make any policy of insurance void, null or voidable; (m) no such Group Company none of its Target Companies enters into or gives or permits or suffers to subsist any guarantee of or indemnity or contract of suretyship for or otherwise commits commit itself in respect of the due payment of money or the performance of any contract, engagement or obligation of any other person or body which if called upon or otherwise exercised by the relevant counterparty would result in a cost to the Group Target Companies of [***] or more; (n) in relation to any Material Real Estate of its Group Target Companies, no such Group Company none of its Target Companies terminates, or gives a notice to terminate, a lease tenancy or licence; (o) no such Group Company none of its Target Companies enters into any partnership or joint venture involving or being likely to involve expenditure by its Seller Group in excess of [***] per annum; (p) no such Group Company none of its Target Companies makes any material amendment to any existing collective bargaining agreement; (q) each such Group Company of its Target Companies maintains in all material respects the standards of production that applied to its products in the six months up to 31 January 2015the date of the Binding Offer Letter; (r) no such Group Company none of its Target Companies settles or compromises any claim or disputes or waives a right in relation to litigation or arbitration proceedings (in each case, save in respect of the collection of debts arising in the ordinary course of business) which could reasonably be expected to result in a payment to or by a Group Target Company of [***] or more; (s) no Group Target Company shall, and the Sellers shall procure that no Group Target Company shall, re-file or amend any Tax Return without the express written consent of the PurchasersPurchaser, except where such re-filing or amendment (i) can reasonably be expected to result in a payment to or by all Group its Target Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or less or (ii) is required to take into account the consequences of a Tax audit or reassessment or fix an omission or error; and (t) no Group Target Company shall, and the Sellers shall procure that no Group Target Company shall, amend any policy in respect of Tax except where such amendment is required by applicable Law or to take into account the consequences of a Tax audit or reassessment in effect on or before Closing, in which case, and where such amending of policy in respect of Tax can reasonably be expected to result in a payment to or by all Group its Target Companies (taken in aggregate only to the extent that similar matters are concerned) of [***] or more, the Group Target Company shall notify the Purchasers Purchaser before making and applying any such amendment. 6.2 The Foreign Purchaser (acting on behalf of the Purchasers) shall not exercise any of its rights pursuant to this clause 6 (including the right to refuse to approve any particular transaction or action) in such a manner as could disrupt unreasonably the efficient operations of the Group Companiesany Target Company. 6.3 Subject to applicable Law, each Seller shall use its reasonable endeavours to assist, and shall procure that each of its Group the Target Companies shall use its reasonable endeavours to assist, the Purchasers Purchaser to prepare for a smooth transition of the Group Target Companies to each of their respective the Purchaser GroupsGroup. 6.4 To the extent that any Group Target Company has entered into any agreement which contains a clause pursuant to which the counterparty may exercise a right as a result of the Proposed Transactions the consequences of which are adverse to the relevant Group Target Company, the relevant Sellers Seller and the Purchasers Purchaser shall cooperate with each other, to ensure that, at the Purchasers’ costPurchaser’s cost (subject to clause 6.5, if applicable), appropriate steps are taken before Closing to inform such counterparty of the Proposed Transactions and to seek a waiver of the counterparty’s relevant right. 6.5 Notwithstanding anything to the contrary in this Agreement, the relevant Seller shall secure, at its sole cost, consents from any third parties that are necessary to effect the complete transfer of the FTC Assets, and for the Purchaser to operate the FTC Assets in a manner consistent with the purposes of the Consent Order, in each case in accordance with the terms of the Consent Order.